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THE    PRIVILEGE 


WRIT  OF  HABEAS  CORPUS 


THE   CONSTITUTION. 


PHILADELPHIA: 

C.   SHERMAN   &   SON,   PRINTERS. 

1862. 


\ 


458.  & 


fot-J 


To  FRANCIS  LIBBER.  LL.D., 

Professor  of  History  and  Political  Science  in  Columbia  College,  New  York. 

MY  DEAR  LIBBER: 

We  have  talked  and  written  much  to  each  other  on  this  Habeas 
Corpus  question.  It  is  a  political  rather  than  a  legal  question, — 
a  mixed  political  and  constitutional  question.  On  propositions 
of  this  nature,  you  are  a  better  authority  than  I  am ;  that  is  to 
say.  you  are  an  authority,  and  I  am  not :  though,  if  it  were  a  ques- 
tion of  common  law,  you  would  understand  it  as  well  as  if  you 
had  been  bred  to  the  Bar.  There  are  difficulties  in  the  question, 
arising  mainly  from  the  concise  though  comprehensive  words  of 
the  Constitution,  referring  to  things  understood  to  explain  them, 
without  explaining  them  itself  with  precision.  No  one  should 
be  dogmatical,  or  very  confident,  in  such  a  matter ;  but  perhaps 
one  who  has  lived  as  long  as  I  have  under  the  Constitution,  may 
be  permitted  to  put  some  of  his  thoughts  into  the  common  mass, 
that  the  best  opinion  may  be  extracted  from  the  whole.  It  is  by 
the  elimination  of  errors,  on  both  sides  of  a  question,  that  we 
come  to  the  truth. 

No  one  whom  I  know  is  more  competent  than  yourself  to  de- 
tect the  errors  in  this  paper;  and  if  you  shall  think  that  they 
pervade  or  comprehend  the  whole  argument,  I  shall  still  remain 
"With  sincere  regard  and  respect, 

Your  friend  and  servant, 

HORACE  BINNEY. 

PHILADELPHIA.  Dec.  23,  1861. 


634754 


INTRODUCTORY. 


THE  right  of  the  President  of  the  United  States,  in  time  of 
rebellion,  and  when  the  public  safety  in  his  judgment  requires, 
to  arrest  and  detain  a  freeman,  in  temporary  denial  or  delay  of 
bail,  trial,  or  discharge,  that  is  to  say,  of  his  privilege  of  the 
Writ  of  Habeas  Corpus,  has  been  exhibited  by  writers  in  our 
Journals,  in  three  points  of  view  : 

1.  As  the  lawful  exercise  of  military  power,  derived  to  the 
President  as  commander  in  chief  of  the  military  force  now  on 
foot  for  the  suppression  of  insurrection  : 

2.  As  an  incident  of  martial  law,  in  time  of  war  within  the 
country,  repelling  the  interference  of  the  civil  authority  in  all 
cases  in  which  the  restoration  of  order  requires  the  application 
of  the  military  principle : 

3.  As  a  civil  power  springing  from  the  Habeas  Corpus  clause 
in  the  Constitution,  and  to  be  authorized  by  Congress,  in  like 
manner  as  by  the  Parliament  of  England,  by  delegating  to  the 
President  the  power  to  arrest  and  detain  persons,  within  the 
limitations  prescribed  by  the  Constitution. 

The  Attorney-General's  opinion  is  not  comprehended  by  this 
division.  That  opinion  is  founded  on  the  alleged  co-ordination 
of  the  three  departments,  and  upon  the  co-equal  authority  of  the 
Executive,  to  interpret  the  Constitution  in  what  regards  the  Ex- 
ecutive duties  and  powers,  and  especially  his  duty  and  power  to 
protect  and  defend  the  Constitution,  and  to  suppress  insurrection 
and  rebellion  against  the  government  of  the  nation ;  and  in  the 
execution  of  this  duty  and  power,  to  arrest  and  detain  persons 
who  are  in  either  actual  or  suspected  complicity  with  rebellion. 

The  bearing  of  the  Habeas  Corpus  clause  in  the  Constitution, 
is  not  particularly  expounded  in  that  opinion,  nor  is  it  specially 
relied  upon  for  the  President's  authority ;  neither  is  the  Presi- 


6 

dent's  power  treated  as  a  military  power,  but  as  a  civil  power, 
exercised  in  the  performance  of  the  civil  duties  of  his  office. 

It  is  not  the  purpose  of  the  following  remarks,  to  treat  the 
subject  from  either  of  the  first  two  points  of  view,  nor  to  affirm 
or  reject  the  argument  of  the  Attorney-General.  The  exclusive 
design  of  the  writer  is  to  consider  the  right  of  the  President  to 
arrest  and  detain,  of  his  own  motion,  in  the  required  conditions, 
as  derived  from  the  language  of  the  Constitution,  and  from  the 
nature  of  the  Executive  office. 


There  are  two  modes  of  treating  this  matter.  One  of  them  is 
the  merely  legal  and  artificial.  The  other  is  the  constitutional 
and  natural. 

In  the  first  mode  may  be  presented  an  argument  against  the 
President's  power,  until  Congress  have  authorized  it,  which  it 
may  not  be  easy  to  answer,  if  the  premises  are  admitted.  The 
argument  is  as  follows  : 

The  language  of  the  Habeas  Corpus  clause  in  the  Constitution. 
says  nothing,  directly  and  explicitly,  in  regard  to  the  depart- 
ment of  government,  which  is  to  exercise  the  power  it  gives ; 
but  it  must  be  viewed  in  the  light  of  Parliamentary  law  in  Eng- 
land, and  by  reference  to  the  customary  sense  in  which  such 
language  was  received  in  the  country  from  which  we  have  taken 
the  great  body  of  our  laws.  This,  it  must  be  presumed,  was  the 
sense  in  which  the  Convention  used  this  language  in  the  forma- 
tion of  the  Constitution. 

Suspended,  applied  to  the  privilege  of  the  writ  of  Habeas  Cor- 
pus, means  the  temporary  withdrawal  or  withholding  of  the  legal 
operation  of  that  Writ  from  an  imprisoned  person.  The  Writ  is 
instituted  by  law.  Law  alone  can  withdraw  or  withhold  its  ope- 
ration, in  any  case  to  which  it  applies.  There  must,  therefore, 
be  a  law  or  statute  to  countervail  the  law  by  which  the  Writ  is 
given,  before  the  operation  of  the  Writ  can  be  withdrawn  or 
withheld  from  a  person  who  is  imprisoned. 

To  create  a  suspension  of  the  privilege  of  the  Writ  in  the  case 
of  an  imprisoned  person,  there  must  then  be,  1,  a  statute  or  law 
which  withdraws  the  privilege  from  the  contemplated  case  of 
imprisonment;  and  2,  an  arrest  and  imprisonment  within  the' 
purview  of  that  statute.  Effectual  suspension  is,  therefore,  a 
conjoint  operation  of  law  and  act;  the  operation  of  a  law  to  sus- 
pend the  Habeas  Corpus  privilege  in  reference  to  the  contem- 


plated  arrest,  past,  present,  or  to  come,  and  the  operation  of  the 
act  of  arrest  or  imprisonment  referred  to  by  the  law. 

This  is  the  meaning  of  Suspension  of  the  privilege  as  it  was 
understood  and  practised  in  the  Parliament  of  England,  when 
our  Constitution  was  formed. 

Although  our  Constitution  does  not  expressly  say  which  de- 
partment of  the  government  may  suspend  the  privilege,  it  ne- 
cessarily implies,  by  the  use  of  such  language,  that  the  Legisla- 
ture shall  first  pass  the  law,  and  that  the  executive  officer  shall 
then  perform  or  order  the  act  of  imprisonment  and  detainer. 

This  is  the  merely  legal  and  artificial  argument. 

But  the  language  of  the  Constitution,  in  this  particular,  was 
not  the  customary  language  of  the  day,  either  in  England  or  in 
the  United  States ;  and  the  Parliamentary  practice  was  the  very 
thing  that  was  to  be  strenuously  rejected  and  excluded.  The 
language  of  the  Habeas  Corpus  clause  in  the  Constitution  was 
new,  and  is  peculiar ;  and  it  must  be  viewed  in  its  own  light,  and 
in  the  light  afforded  by  other  parts  of  the  same  Constitution. 

The  Constitution  does  not  use  the  word  suspended  in  an  arti- 
ficial or  technical  sense,  for  it  had  none  in  this  relation ;  nor  as 
consisting  of  two  acts,  an  act  of  legislation,  and  an  act  of  impri- 
sonment; but  as  one  thing  under  the  sanction  of  the  Constitu- 
tion. The  warrant  of  arrest,  with  the  order  that  the  party's 
privilege  be  denied  for  a  season,  is  suspension  under  the  Consti- 
tution. A  temporary  denial  of  the  privilege  by  a  single  act, 
founded  on  the  authority  of  the  Constitution,  is  all  that  is  neces- 
sary to  suspend  the  privilege. 

The  power  to  imprison,  and  to  deny  or  delay  a  discharge  from 
imprisonment,  is  an  executive  power.  All  the  conditions  of  the 
exercise  of  the  power  described  in  the  Habeas  Corpus  clause, 
are  of  executive  cognizance,  that  is  to  say,  rebellion  or  invasion, 
and  the  requirement  of  the  public  safety  in  the  time  of  either. 
No  legislative  act  is  necessary  or  proper  to  give  the  cognizance 
of  these  facts  to  the  executive  department.  No  act  of  Parliament 
has  ever  been  passed  in  England,  or  has  been  proposed  in  Con- 
gress, to  take  away  or  abridge  the  executive  power  in  regard  to 
these  facts.  All  the  acts  of  Parliament  which  deprive  persons  of 
the  right  to  bail  or  trial,  in  derogation  of  the  Habeas  Corpus  Act 
of  Charles  II,  leave  this  power  and  discretion  to  the  Crown. 
They  cannot  be  taken  away  by  Congress  without  invading  the 
constitutional  limits  of  the  Executive  office.  They  cannot  be 


given  by  Congress  to  the  Executive  without  supererogating  what 
the  Constitution  gives.  The  only  thing  required  to  bring  this 
power  and  discretion  into  operation  in  the  conditioned  cases, 
against  the  privilege  of  the  Writ,  is  an  authority  superior  to  the 
law  which  authorizes,  or  may  authorize,  the  Writ ;  and  that  is 
the  authority  of  the  Constitution  in  the  Habeas  Corpus  clause. 

The  power  to  suspend  the  privilege  of  the  Writ,  is  moreover 
inseparably  connected  with  rebellion  or  invasion, — with  internal 
war.  The  direction  of  such  a  war  is  necessarily  with  the  Exe- 
cutive. The  office  cannot  be  deprived  of  it.  It  is  the  duty  of 
the  office,  in  both  its  military  and  civil  aspects,  to  suppress  in- 
surrection, and  to  repel  invasion.  The  power  to  suspend  the 
privilege,  is  supplementary  to  the  military  power  to  suppress 
or  repel.  It  is  a  civil  power  to  arrest  for  privity  or  supposed 
privity  with  rebellion,  as  the  military  power  is  to  suppress  by 
capture  for  overt  acts  of  rebellion.  They  should  reside  in  the 
same  magistrate,  as  inseparable  incidents  of  the  Executive  power, 
in  time  of  internal  war.  The  aversion  to  this  doctrine,  where  it 
exists,  is  a  reminiscence  of  the  English  practice,  when  the  Crown 
claimed  the  right  to  suspend  the  privilege  in  time  of  profound 
peace  and  order ;  or  it  is  a  misconception  of  the  grounds  of  Par- 
liamentary action,  since  the  Habeas  Corpus  Act  of  Charles  II. 

The  true  character  of  every  act  of  Parliament  in  this  relation, 
and  of  the  only  bill  that  has  been  proposed  in  Congress,  has  been 
executive,  and  so  it  must  be.  They  have  said,  in  effect,  and  must 
say,  that  the  act  of  the  King's  Council,  or  of  the  President,  shall 
be  final.  The  only  aspect  in  which  an  act  of  Congress  to  this 
effect  can  be  regarded  as  legislative,  is  as  the  grant  or  crea- 
tion of  an  authority  to  detain  against  the  writ ;  but  this  is  super- 
erogation, because  the  Constitution  gives  it.  The  only  question 
is,  to  which  department  of  the  government,  the  exercise  of  it  be- 
longs, by  the  general  scheme  of  the  Constitution ;  and  according 
to  the  delineation  of  the  departments  in  that  instrument,  the  ex- 
ercise of  the  power  appertains  to  the  President. 

This  is  the  broad  constitutional  and  natural  argument ;  and  it 
is  in  support  of  this  hypothesis  that  the  following  remarks  are 
made. 


THE  PRIVILEGE  OF  THE  WRIT. 


THE  clause  in  the  Constitution  of  the  United  States  in  regard 
to  the  privilege  of  the  Writ  of  Habeas  Corpus,  is  this : 

"  The  privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be 
suspended,  unless,  when  in  cases  of  rebellion  or  invasion,  the 
public  safety  may  require  it." 

The  sentence  is  elliptical.  When  the  ellipsis  is  supplied,  it  reads 
thus : 

"  The  privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be 
suspended,  unless,  when  in  cases  of  rebellion  or  invasion,  the 
public  safety  may  require  it ;  and  then  it  may  be  suspended." 

This  is  the  necessary  effect  of  the  conjunction  "unless,"  which 
reverses  the  action  of  the  preceding  verb ;  and  it  will  be  of  per- 
fectly equivalent  import  and  effect  if  the  clause  be  transposed  as 
follows :  "  The  privilege  of  the  Writ  of  Habeas  Corpus  may  be 
suspended  in  cases  of  rebellion  or  invasion,  when  the  public 
safety  may  require  it ;  and  it  shall  not  be  suspended  in  any  other 
case." 

The  clause  contains  an  expression  that  belongs  to  the  law, — 
"  The  "Writ  of  Habeas  Corpus."  "  The  Writ  of  Habeas  Corpus," 
simply  and  without  more,  means  the  Writ  of  Habeas  Corpus  ad 
Bubjiciendum.  This  was  and  is  the  'meaning  universally  when 
we  speak  of  a  Writ  of  Habeas  Corpus  in  the  United  States,  with- 
out any  affix. 

This  Writ  commands  that  the  body  of  a  detained  or  imprisoned 
person  be  brought  before  a  court  or  judge,  with  the  cause  of  his 
commitment  or  detainer,  to  be  subjected  to  the  order  of  the  court 
or  judge  in  regard  to  the  disposal  of  his  person.  By  Habeas 
Corpus  acts  generally,  the  privilege  of  every  freeman  is  to  be 
delivered  on  bail,  put  upon  his  trial,  or  discharged,  without  ar- 


10 

bitrary  delay  ;  and  this  is  the  privilege  which  the  Writ  of  Ha- 
beas Corpus  is  used  to  enforce,— to  be  bailed,  tried,  or  discharged 
without  arbitrary  delay. 

The  United  States,  while  the  Constitution  was  in  the  course 
of  formation,  had  no  Writ  of  Habeas  Corpus,  or  Habeas  Corpus 
Act ;  and  the  clause  therefore  does  not  refer  to  any  particular 
law,  statute,  or  writ  that  was  in  operation  or  use  in  a  particular 
place.  It  used  the  expression  generally  as  language  of  the  law 
in  the  States,  in  which  it  had  a  certain  meaning. 

The  privilege  mentioned  in  the  clause  is,  therefore,  the  privi- 
lege of  an  imprisoned  or  detained  person,  of  being  bailed,  tried, 
or  discharged  without  arbitrary  delay. 

The  words  "  shall  not  be  suspended,"  as  applied  to  the  privi- 
lege, are  not  words  of  the  common  law,  or  of  any  other  system 
of  law  in  particular.  They  are  not  technical.  They  are  words 
in  general  or  popular  use ;  and  whenever  used  in  reference  to  a 
privilege,  signify  the  same  thing  as  hung  up,  deferred,  delayed, 
denied  for  a  season.  It  is  not  uncommon  in  England  and  in  this 
country  to  speak  of  the  suspension  of  the  Habeas  Corpus  Act, 
a  loose  and  inaccurate  expression,  because  the  Habeas  Corpus 
Act  is  never  suspended.  The  Parliament  of  England,  by  its  im- 
prisonment acts,  depriving  certain  persons,  committed  by  war- 
rant of  the  King's  Privy  Council  or  Secretary  of  State,  of  the 
privilege  of  bail  and  trial,  do  not  speak  of  suspending  the 
Habeas  Corpus  Act  of  31  Charles  II,  or  of  suspending  the  Writ 
of  Habeas  Corpus,  or  of  suspending  anything.  Blackstone,  in 
one  instance,  speaks  of  "suspending  the  Habeas  Corpus  Act  for 
a  short  or  limited  time;"  when,  in  fact,  the  Habeas  Corpus  Act 
of  England  has  never  been  suspended  for  a  moment.  He  spoke 
loosely  and  inaccurately.  The  English  imprisonment  Acts,  made 
during  the  rebellion  for  the  Pretender,  did  suspend  a  Statute  of 
Scotland  to  prevent  wrong ous  imprisonment,  so  far  as  regards 
treason,  in  order  to  oust  the  jurisdiction  of  a  local  authority  over 
a  particular  crime ;  and  the  expression  was  right.  But  they  used 
no  such  words  as  to  the  English  statute  or  writ. 

Suspending  the  privilege  of  the  Writ,  is  not  an  English  law 
expression.  It  was  first  introduced  into  the  Constitution  of  the 
United  States.  The  privilege  is  personal  and  individual,  not 
local,  but  subsists  in  remedy.  The  right  of  being  exempt  from 


11 

arbitrary  imprisonment  is  a  natural  right,  and  is  predicable  by 
the  Common  Law  of  every  freeman  ;  and  to  hang  up,  defer, 
delay,  deny  for  a  season,  the  privilege  which  a  statute  gives,  or 
is  expected  to  give,  in  relief  of  imprisonment,  is  to  suspend  it  in 
the  sense  of  this  clause  of  the  Constitution.  Freedom  is  the 
right,  either  absolute  or  qualified.  The  remedy  is  privilege. 

This,  then,  is  the  whole  meaning  of  the  clause  in  our  Consti- 
tution,— the  privilege  of  being  bailed,  tried,  or  discharged  from 
imprisonment  without  delay,  shall  not  be  discretionally  denied, 
or  hung  up  or  deferred,  unless,  when  in  cases  of  rebellion  or  in- 
vasion, the  public  safety  may  require  it ;  and  then,  or  in  those 
circumstances,  it  may  be  denied  or  deferred  for  a  season,  or  tem- 
porarily. 

The  people  of  the  United  States  have  said  this  by  their  Con- 
stitution of  government.  The  power  to  say  this  belongs  to  the 
United  States  by  the  grant  of  the  people.  They  have  said  that 
the  privilege  of  being  bailed,  tried,  or  discharged  when  in  cases 
of  rebellion  or  invasion  the  public  safety  may  require  it,  may 
be  denied,  deferred,  or  hung  up  for  a  season. 

The  Constitution  of  the  United  States  authorizes  this  to  be 
done,  under  the  conditions  that  there  be  rebellion  or  invasion  at 
the  time,  and  that  the  public  safety  requires  it.  The  Constitu- 
tion does  not  authorize  any  department  of  the  government  to 
authorize  it.  The  Constitution  itself  authorizes  it.  By  whom 
it  is  to  be  done,  that  is  to  say,  by  what  department  of  the  go- 
vernment this  privilege  is  to  be  denied  or  deferred  for  a  season 
under  the  conditions  stated,  the  Constitution  does  not  expressly 
say ;  and  that  is  the  question  of  the  day. 

The  Constitution  uses  the  one  word  suspended,  to  signify  one 
act,  by  one  agent  or  body,  with  one  effect,  consummate  by  one 
operation, — imprisonment  without  bail,  trial,  or  discharge,  for 
a  season  ;  which  act  it  authorizes  in  certain  conditions  of  the 
nation.  It  is  impossible  to  suppose,  that  in  speaking  of  sus- 
pending the  privilege  of  the  Writ,  it  meant  by  one  act  of  law, 
as  if  it  had  spoken  of  the  Writ  alone,  or  of  the  Habeas  Corpus 
Act.  And  it  is  equally  impossible  that  it  meant  the  general  or 
universal  privilege  in  the  United  States  at  large.  This  would 
have  been  an  infinite  absurdity,  comprehending  and  involving  all 
freemen,  friends  as  well  as  foes  of  the  government,  and  even  the 


12 

very  persons  who  should  suspend  the  privilege.  Neither  did  it 
mean  to  speak  of  two  acts,  one  of  authority  and  one  of  execu- 
tion, for  its  own  words  are  the  authority.  The  privilege  is  neces- 
sarily personal  or  individual ;  and  by  ordaining  that  this  may  be 
suspended  on  certain  conditions,  it  leaves  nothing  contingent  ex- 
cept those  conditions,  and  nothing  unexpressed  except  the  de- 
partment by  which  the  conditions  were  to  be  declared  to  exist, 
and  the  act  of  imprisonment  to  be  executed.  The  question  is, 
which  is  that  department? 

It  must  be  remarked  that  this  whole  provision  is  unlike  any 
provision  of  the  Constitution  of  England,  or  of  the  Common  Law. 
The  bearing  of  the  Constitution  of  England  upon  the  Writ  of 
Habeas  Corpus,  and  upon  the  executive  power  of  the  King  to 
suspend  the  personal  privilege  of  a  subject,  supplies  a  very  de- 
fective and  a  very  deceptive  analogy  for  the  interpretation  of 
the  Constitution  of  the  United  States ;  a  very  different  Consti- 
tution as  we  know,  and  which  has  adopted  new  and  quite  ori- 
ginal language  in  relation  to  the  privilege. 

The  doctrine  of  the  English  Common  Law  is  the  universal 
exemption  of  the  freemen  of  England,  at  all  times  and  without 
any  exception,  from  discretionary  imprisonment  by  any  body. 
The  language  of  the  39th  clause  of  Magna  Carta  is  to  the  same 
effect :  "NULLUS  LIBER  HOMO  capiatur,  vel  imprisonetur,  aut  ut- 
lagetur,  aut  exuletur,  aut  aliquo  modo  destruatur ;  nee  super 
eum  ibimus,  nee  super  eum  mittemus,  nisi  per  legale  judicium 
parium  suorum  vel  per  legem  terra?."  "From  the  era,  there- 
fore, of  King  John's  charter,"  Mr.  Hallam  says,  "it  must  have 
been  a  clear  principle  of  our  Constitution  that  no  man  can  be 
detained  in  prison  without  trial."  Midd.  Ages  II,  324.  And 
this  conforms  precisely  to  the  two  resolutions  carried  by  Sir 
Edward  Coke  in  the  House  of  Commons  in  1628,  which  were 
afterwards  the  foundation  of  the  English  Habeas  Corpus  Act  of 
31  Charles  II. 

I.  That  no  freeman  ought  to  be  committed  or  detained  in 
prison,  or  otherwise  restrained,  by  the  command  of  the  King  or 
the  Privy  Council,  or  any  other,  unless  some  cause  of  the  com- 
mitment, detainer,  or  restraint  be  expressed,  for  ivhich,  by  law, 
he  ought  to  be  committed,  detained,  or  restrained. 

II.  That  the  Writ  of  Habeas  Corpus  cannot  be  denied,  but 


ought  to  be  granted  to  every  man  that  is  committed  or  detained 
in  prison,  or  otherwise  restrained,  by  the  command  of  the  King, 
the  Privy  Council,  or  any  other.  2  Parl.  Hist.  259. 

Exemption  from  discretionary  imprisonment  without  bail  or 
trial,  is  therefore  an  undoubted  principle  of  the  Common  Law. 

Before  the  era  of  King  John's  Charter,  there  may  be  histori- 
cal uncertainty  in  this  matter.  The  previous  age  was  one  of 
the  exercise  of  large  arbitrary  power  by  the  King.  The  Nor- 
man conquest  sat  down  on  the  free  code  of  the  Saxons,  in  the 
cunabula  of  the  common  law,  and  pressed  it  heavily.  Temporary 
imprisonment  at  the  King's  pleasure  had  doubtless  occurred  in 
many  cases ;  and  in  time  of  rebellion,  of  which  the  Norman 
Kings  had  more  than  one  sample,  it  is  quite  probable  that  such 
imprisonment  may  have  been  acquiesced  in  for  the  public  safety  ; 
and  that  the  King's  right  may  thus  have  acquired  some  sanction 
from  usage,  giving  color  to  the  exercise  of  the  same  power,  when 
there  was  no  rebellion.  But  the  English  Barons,  in  their  con- 
test with  King  John,  had  the  magnanimity  to  put  the  matter 
beyond  doubt,  not  only  as  to  themselves,  but  as  to  the  freemen 
of  England  generally;  and  it  is  for  this  reason  that  Mr.  Hallam 
has  signalized  that  epoch. 

The  principle  allows  of  no  exception  or  qualification  on  ac- 
count of  rebellion  or  invasion,  when  war  is  within  the  kingdom, 
nor  on  account  of  any  other  cause  or  matter  whatever,  not  even 
the  public  safety  in  time  of  rebellion  or  invasion. 

It  is  a  glorious  principle,  and  worthy  of  all  aspiration,  like 
perfeetness.  But  it  is  too  perfect  for  human  society,  at  least  for 
the  condition  which  human  society  has  usually  assumed  for  se- 
veral centuries.  It  was  the  occasion  of  fierce  struggles  between 
kings  and  people  in  England  before  Magna  Carta  and  after ; 
and  the  struggle  was  not  finally  ended  until  the  latter  half  of  the 
17th  century,  by  the  defeat  of  the  King's  arbitrary  power,  and 
by  the  deposit  of  arbitrary  power  over  the  same  principle,  not 
in  the  people  who  originally  held  it  beyond  all  arbitrament,  but 
in  the  Parliament  of  England,  as  if  they  were  incapable  of 
abusing  it.  Less  likely  Parliament  may  be  ;  less  able,  Parliament 
is  not.  The  Constitution  of  England  appears  to  be  now  what  it 
always  was  in  regard  to  this  principle ;  and  English  lawyers  and 
statesmen  still  say,  that  it  is  a  principle  of  their  Constitution,  as 


14 

it  always  was,  that  no  man  can  be  detained  in  prison  without 
trial.  But  there  is  another  principle  which  they  assert  with  equal 
strength  and  constancy,  that  what  Parliament  declares  to  be 
the  Constitution  of  England,  is  the  Constitution  of  England  ;  or, 
rather,  that  what  Parliament  enacts,  the  courts  of  England 
cannot  adjudge  to  be  unconstitutional  and  void  ;  and,  therefore, 
that  although  by  the  Common  Law  and  Magna  Carta  and  the 
Constitution  of  England,  no  man  can  be  detained  in  prison  with- 
out trial,  yet  that  Parliament  may  constitutionally,  or  imperially, 
authorize  the  King's  Privy  Council,  or  one  of  his  Secretaries  of 
State,  or  perhaps  anybody  at  their  pleasure,  to  imprison  a  free- 
man in  time  of  peace,  when  there  is  neither  rebellion  nor  inva- 
sion, nor  anything  like  war  in  the  kingdom,  but  only  seditious 
agitations  for  reform,  or  clamors  against  a  ministry,  with  scar- 
city and  derangement  of  trade,  accompanied  by  treasonable  or 
suspected  treasonable  practices ;  and  may  detain  him  without 
trial  or  bail  for  six  months,  or  a  year,  or  for  any  time  they  see 
fit,  renewable  forever  at  the  pleasure  of  Parliament. 

The  principle,  therefore,  of  the  old  common  law,  that  every 
freeman  is  entitled  at  all  times  and  in  all  cases,  to  be  exempt 
from  discretionary  or  arbitrary  imprisonment,  has,  in  England, 
come  practically  to  this, — that  he  is  entitled  to  it,  unless  Parlia- 
ment shall,  in  their  discretion,  see  fit  to  take  it  away  for  a  time, 
by  giving  the  power  of  such  imprisonment  to  the  King  in  Coun- 
cil, or  to  one  of  the  King's  principal  Secretaries  of  State,  or 
perhaps  to  anybody  they  see  fit. 

There  is  no  intention  in  saying  this,  to  find  fault  with  the 
English  Constitution,  which  must  be  taken  as  a  whole,  and  is 
truly  a  magnificent  work,  the  result  of  vast  experience,  wisdom, 
and  genius  for  the  government  of  freemen ;  but  the  intention  is 
to  state  an  indisputable  fact,  to  which  the  people  of  these  United 
States  were  wide  awake  when  they  made  their  Constitution,  and 
regarded  it  as  a  very  exceptionable  fact,  and  wholly  inadmissible 
by  them.  They  meant  to  exclude  Parliamentary  law,  to  qualify 
the  principle  as  the  public  safety  of  the  country  required,  and  to 
declare  the  conditions  or  qualifications  of  the  principle  for  them- 
selves. To  state  this,  is  to  clear  away  something  from  the  decep- 
tive analogy  of  the  English  Constitution  and  the  course  of  Par- 
liament. 


15 

The  formal  contest  for  the  possession  of  this  discretion  to  im- 
prison and  detain  without  trial,  was  long  in  England ;  but  does 
not  require  long  to  state.  It  was  first  between  the  King  and 
the  Lords  or  Barons,  and  then  between  the  King  and  some  of 
the  people,  and  finally  between  the  King  and  the  Parliament ;  and 
this  Parliamentary  contest  with  the  King  began  and  ended  with 
that  family  of  Kings,  in  whose  reigns,  or  at  the  end  of  them, 
Englishmen  settled  the  great  principles  of  their  government. 

The  Habeas  Corpus  Act  of  31  Charles  II,  as  well  as  a  more 
pointed  and  anti-regal  statute  of  16  Charles  I,  which  followed 
the  Petition  of  Right,  was  made  during  this  contest,  in  jealousy 
of  the  Royal  hereditary  power,  as  the  Constitution  of  that 
monarchy  had  immemorially  established  it.  It  was  in  jealousy 
of  the  Royal  hereditary  power  generally,  but  was  quickened 
and  invigorated  greatly  by  jealousy  of  the  race  of  Kings  then 
on  the  throne.  Nearly  the  whole  of  that  century  was  an  age 
of  transition  from  the  irregular  and  disputed  pretensions  of  the 
English  Crown,  sometimes  controlling  and  always  menacing  the 
Commons,  frequently  using  and  perpetually  threatening  the  use 
of  arbitrary  power,  to  the  principles  of  constitutional  govern- 
ment as  asserted  by  Parliament,  and  as  denied  by  the  Crown  ; 
and  Parliament  succeeded.  It  cannot  be  said  that  the  people 
succeeded  in  the  same  degree.  That  nation  has  now  arrived  at 
a  stage,  in  which  the  contest  for  influence  in  the  government  is 
between  different  classes  of  the  people  ;  and  the  great  question 
between  them  is,  whether  the  people  at  large  have  as  large  a 
share  in  the  government  of  themselves  as  they  ought  to  have  and 
can  bear ;  but  for  nearly  the  whole  period  of  the  second  Stuart 
King,  it  was  a  contest  between  the  Parliament  and  the  Crown ; 
and  the  security  of  the  person  of  the  subject  from  arbitrary  im- 
prisonment by  the  King,  and  of  his  property  from  the  arbitrary 
exactions  of  the  King,  were  the  points  upon  which  all  political 
movements  turned. 

Neither  the  16  Charles  I,  nor  the  31  Charles  II,  did  more 
than  affirm  the  immemorial  custom  or  principle  of  the  common 
law  which  has  been  adverted  to,  and  the  King's  incapacity  to 
supersede  it  at  his  discretion ;  but  the  later  statute  has  derived 
its  reputation  and  popularity  from  fencing  the  privilege  of  the 
Writ  of  Habeas  Corpus  with  the  most  jealous  guards  against  the 


16 

dependants  of  the  King,  his  Judges,  who  held  their  offices  during 
his  pleasure,  and  his  officers  of  his  sole  appointment,  who,  in 
subservience  to  his  wishes,  had,  in  conspicuous  instances,  made 
the  common  law  of  no  avail  against  the  Crown.  Two  changes 
in  the  Constitution  of  England,  making  good  behavior  the  tenure 
of  judicial  office,  and  requiring  the  assent  of  a  branch  of  the 
Legislature  to  the  King's  appointments  to  office,  might  perhaps 
.  have  obviated  the  necessity  of  nearly  all  the  provisions  of  the 
great  Habeas  Corpus  Act.  If  anything  makes  this  doubtful, 
it  is  the  constitutional  power  of  the  Crown,  which  is  large  and 
has  a  pervading  influence,  though  much  of  it  is  disguised  from 
our  observation,  by  its  exercise  through  ministers  who  are  in 
Parliament,  and  the  leaders  of  that  body.  But  with  these  pro- 
visions in  the  Constitution  of  the  United  States,  and  with  the 
Habeas  Corpus  clause  just  noticed,  the  Federal  Constitution  has 
gone  on  for  seventy  years  without  a  Habeas  Corpus  Act,  and 
without  anything  of  that  kind,  but  a  naked  authority  to  the 
Courts  and  Judges  of  the  Federal  Judiciary,  to  issue,  among 
other  writs,  the  writ  of  Habeas  Corpus. 

The  jealousy  toward  the  King  in  regard  to  this  Writ,  so 
deeply  rooted  in  the  English  heart  during  the  struggle  with  the 
Stuarts,  has  continued  to  exist,  and  still  exists  in  the  people  of 
that  kingdom,  as  a  principle,  without  the  same  personal  causes 
in  the  conduct  of  the  reigning  monarch ;  but  considering  what 
the  office  of  the  King  of  England  is  by  the  settled  Constitution 
of  the  Kingdom,  there  is  no  doubt  good  reason  for  it  even  at 
this  day ;  and  there  always  will  be.  The  royal  power  in  Eng- 
land, whatever  we  may  say  of  it,  is  still  a  great  power,  and 
must  remain  a  great  power  if  that  nation  would  remain  what  it 
is.  With  a  people  jealous  of  their  personal  liberty,  and  intent 
upon  maintaining  it,  this  jealousy  has,  and  will  always  have,  a 
foundation  in  a  justifiable  fear  of  the  royal  prerogatives  and 
influence. 

The  exclusive  right  to  declare  war,  and  to  make  treaties  with 
foreign  powers  without  the  advice  and  consent  of  either  branch 
of  the  legislature — the  power  to  build  ships  and  to  regulate  a 
navy — the  power  of  calling  forth  the  militia  for  any  cause  which 
in  the  King's  judgment  makes  it  expedient — the  sole  and  ex- 
clusive power  of  appointments  to  office,  both  civil  and  military — 


17 

the  power  of  appointment  to  great  office  in  the  established 
Church — the  power  of  conferring  upon  such  subjects  as  the 
Crown  favors  both  rank  and  title,  and  hereditary  authority  as 
law-makers  in  one  branch  of  the  legislature — and  the  power  of 
absolute  veto  upon  acts  of  Parliament ;  it  is  these  prerogatives 
which  make  the  King's  hereditary  office,  in  connection  with  an 
hereditary  aristocracy,  a  source  of  apprehension  to  the  Commons 
of  England,  and  justify  their  jealousy  in  maintaining  the  guards 
of  the  Habeas  Corpus  Act,  and  in  extending  them,  as  they  did 
so  late  as  the  56  George  III,  from  commitments  for  any  criminal 
or  supposed  criminal  matter,  to  commitments  for  any  cause  what- 
ever. 

At  the  same  time  it  must  be  remarked  that  the  people  of 
England  have  not  in  this  matter  shown,  or  been  permitted  to 
give  effect  to,  the  least  jealousy  whatever  of  the  absolute  power 
of  Parliament.  While  the  31  Charles  II  by  express  provision 
places  the  Writ  of  Habeas  Corpus  at  the  call  of  anybody  com- 
mitted for  any  criminal  or  supposed  criminal  matter,  and  now 
for  any  cause  whatever  by  the  56  George  III,  so  that  the  oc- 
currence of  rebellion  or  invasion,  or  any  the  most  extreme  crisis 
of  public  danger,  cannot  deprive  any  one  of  the  privilege  of  the 
Writ  for  an  instant,  nor  give  the  King  the  power  to  detain  the 
most  reasonably  suspected  and  dangerous  man  in  the  kingdom, 
Parliament  has  an  unlimited  power  to  suspend  the  privilege 
without  either  invasion  or  rebellion,  or  any  crisis  of  danger, 
other  perhaps  than  such  as  may  attend  an  unpopular  ministry 
for  persevering  in  unpopular  measures.  Parliament  is  under  no 
guard  or  restriction  whatever  in  point  of  time  or  circumstance. 
Parliament  and  the  people,  in  the  late,  or  even  present,  condition 
of  representation  in  England,  are  not  precisely  the  same.  The 
people  and  a  majority  of  Parliament  are  not  always  the  same  in 
sympathy. 

It  is  no  answer  to  this  remark  on  the  Constitution  of  England, 
to  say  that  the  King  and  Parliament  must  unite  before  the  privi- 
lege of  the  Writ  can  be  interrupted.  The  King  may  be  a  party 
to  it  for  purposes  of  his  own,  in  opposition  to  the  interests  of  his 
people ;  and  so  may  his  ministry ;  and  so  may  a  majority  of 
Parliament,  in  a  certain  condition  of  representation  in  Parlia- 
ment. This  condition  of  government  may  last  and  has  lasted 

2 


18 

for  some  years  at  different  epochs,  and  has  been  exhibited  clearly 
and  distinctly  in  the  early  part  of  the  present  century.  In  mat- 
ters which  concern  anything  so  precious  as  personal  liberty,  and 
its  protection  in  general  against  arbitrary  imprisonment,  it  is  a 
desideratum  in  every  free  Constitution,  to  guarantee  the  privi- 
lege of  the  Writ  of  Habeas  Corpus,  absolutely,  to  the  whole  ex- 
tent that  the  government  will  be  and  remain  in  its  normal  con- 
dition of  internal  peace,  and  in  the  regular  administration  of 
law.  When  it  is  thrown  out  of  that  condition  by  rebellion  or 
invasion,  facts  easily  made  certain  beyond  cavil,  tending  to  the 
derangement  of  the  course  of  justice,  and  requiring  a  resort  to 
military  force,  and,  to  some  extent,  discretionary  civil  authority, 
the  security  of  both  the  people  and  the  government  demand  a 
temporary  limitation  of  the  privilege  to  prevent  its  being  abused 
to  increase  the  disorder  of  the  times.  At  such  seasons  it  is  of 
less  importance  in  what  branch  of  government  the  power  of  ap- 
plying the  limitation  is  vested.  That  must  depend  upon  the 
nature  of  the  government  and  upon  the  distribution  of  its  powers ; 
but  it  should  obviously  be  with  that  department  of  the  govern- 
ment which  is  the  least  able  of  itself  to  abuse  the  power,  and  is 
the  most  easily  and  directly  made  amenable  to  responsibility  and 
correction  for  abuse.  In  fine  the  Common  Law  principle  re- 
quires qualification  for  modern  times,  and  most  of  all  in  govern- 
ments which  are  the  least  strong,  and  among  a  people  who  are 
the  most  free.  The  English  Constitution  still  asserts  its  univer- 
sality, and  restricts  it  at  pleasure  by  the  omnipotence  of  Parlia- 
ment. Of  course  such  a  power  is  liable  to  abuse,  and  to  be 
without  remedy,  however  rarely  it  may  be  abused. 

In  former  years,  after  the  Revolution  of  1688,  and  when  the 
contest  between  classes  in  England  was  not  as  warm  as  it  has  be- 
come in  more  modern  times, — from  the  time  of  the  Revolution 
to  the  close  of  the  eighteenth  century,  the  power  of  Parliament 
was  used  very  much  in  the  spirit  of  the  limitation  adverted  to ; 
but  in  the  early  part  of  the  present  century,  in  one  or  more  in- 
stances, it  is  supposed  to  have  departed  from  it. 

When  there  was  neither  rebellion,  nor  invasion,  nor  war,  and 
when  the  danger  of  foreign  war  was  removed  by  the  overthrow 
of  Napoleon,  the  57  Geo.  Ill,  3  May,  1817,  gave  the  power  to 
the  King's  Privy  Council  and  Secretaries  of  State,  to  detain 


19 

without  bail  or  trial,  persons  committed  by  their  warrant  for 
treasonable  or  suspected  treasonable  practices,  during  the  limita- 
tion of  the  statute ;  and  it  was  to  a  great  extent  a  question  of 
the  ministry,  and  of  party.  The  country  was  deranged  by  scar- 
city and  embarassments  of  trade,  and  agitated  by  their  common 
consequences,  frame-breaking  or  rick-burning,  and  cries  for 
reform.  There  were  probably  treasonable  practices  at  the  same 
moment ;  but  the  imprisonment  statute  in  the  57th  year  of  the 
King,  was  obviously  promoted,  and  but  shortly  preceded,  by  an 
acquittal  of  Dr.  Watson  from  the  charge  of  treason,  by  a  jury 
of  Middlesex,  after  a  week's  trial,  strong  evidence  of  his  guilt, 
and  a  pointed  charge  to  the  jury  against  him  by  Lord  Ellen- 
borough.  The  Courts  were  open  and  unobstructed;  but  the  juries 
could  not  be  relied  on  to  convict  the  guilty.  It  was  a  case  of 
immense  party  agitation.  Sir  Samuel  Romilly,  and  others, 
equally  loyal  to  the  Constitution,  though  not  friendly  to  the 
ministers,  opposed  the  statute  vehemently  as  a  party  or  political 
measure.  So  also  they  opposed  the  Seditions  bill,  a  bill  it  might 
be  said,  in  pari  materia,  carried  in  the  same  month  ;  and  the  bill 
for  imprisonment  without  trial  was  continued  by  another  statute 
in  the  same  session,  to  March  in  the  following  year.  And  this 
is  the  scope  of  Parliamentary  power  over  the  privilege  of  the 
Writ  of  Habeas  Corpus. 

The  Habeas  Corpus  Act  of  England,  with  this  discretionary 
power  of  Parliament,  affords  no  analogy  for  the  United  States, 
who  have  qualified  the  principle,  so  as  to  secure  it  against  the 
discretionary  power  of  any  body,  except  when  the  nation  is 
forced  away  from  its  normal  and  orderly  condition  by  internal 
war,  rebellion,  or  invasion.  In  such  a  condition,  the  govern- 
ment cannot, — properly  speaking,  will  not,  and  cannot  exten- 
sively,— abuse  the  exception.  Such  disorders  as  rebellion  or 
invasion,  touch  the  life  of  the  government  itself;  and  the  ex- 
ception cannot  be  either  usefully  or  constitutionally  applied, 
except  to  defeat  a  sympathy  with  domestic  or  foreign  enemies, 
to  the  overthrow  of  the  fundamental  institutions  of  the  people. 
More  of  this  constitutional  dependence  of  the  exception  upon 
rebellion,  presently. 

There  is  another  particular  in  which  it  is  necessary  to  dis- 
regard the  analogy  of  the  English  law,  a  particular  in  which  we 


20 

are  most  likely  to  be  led  astray,  and  have  been,  in  fact,  to  some 
extent,  led  astray,  by  supposing  an  analogy,  where  there  is  none. 
It  is  the  manner  in  which  the  privilege  of  the  Writ  is  overruled 
in  England,  and  which  must  be  done  by  a  Legislative  Act, — by 
an  Act  of  Parliament.  It  can  be  done  in  no  other  way. 

The  Habeas  Corpus  Act  of  Charles  II  is  an  Act  of  Parlia- 
ment ;  and  by  the  Constitution  of  England,  nothing  but  a  subse- 
quent Act  of  Parliament  can  abolish,  restrain,  or  impair  such  a 
preceding  Act.  There  is  no  Constitution  above  it,  that  imparts 
an  authority  to  arrest  its  operation  in  any  case,  nor  upon  the 
occurrence  of  any  event  whatever,  except  in  this  one  way,  by  a 
subsequent  Act  of  the  same  body  which  enacted  it.  If  a  written 
Constitution  in  England,  superior  to  an  Act  of  the  Legislature, 
— if  even  the  statute  of  31  Charles  II, — or  any  subsequent  Act 
of  Parliament,  had  declared  that  the  privilege  of  the  Writ  of 
Habeas  Corpus  shall  not  be  suspended,  unless  when  in  cases  of 
rebellion  or  invasion  the  public  safety  may  require  it,  and  under 
such  a  provision,  it  had  been  uniformly  held  that  Parliament 
alone  could  declare  the  fact  of  rebellion  or  invasion,  and  the 
fact  of  public  danger,  or  what  the  public  safety  required,  there 
would  have  been  an  analogy  which  we  might  examine  and  con- 
sider. But  under  our  different  Constitutions,  there  is  none. 
There  is  nothing  of  higher  authority  in  England  than  the  Statute 
of  31  Charles  II,  except  a  subsequent  statute ;  and  until  such 
subsequent  statute,  its  provisions  are  of  absolute  authority  over 
King,  and  Privy  Council,  and  Secretaries  of  State,  and  every- 
body. That  statute  gives  to  everybody  committed  to  prison  for 
any  criminal  or  supposed  criminal  matter,  which  a  subsequent 
statute  extends  to  every  commitment,  not  only  a  right  to  the 
Writ  of  Habeas  Corpus,  but  a  right  to  immediate  bail,  or  speedy 
trial,  or  discharge  from  imprisonment.  The  statute  contains 
no  exception  whatever.  Nothing  but  a  subsequent  statute  can 
make  an  exception.  There  is  no  ground  or  place  to  argue  that 
the  King's  power  to  watch  over  the  public  safety,  and  to  provide 
for  it  by  all  the  means  at  his  disposal,  or  his  authority  to  pro- 
claim rebellion  or  invasion,  or  even  to  call  out  the  Militia,  has 
any  the  least  virtue  to  stay  any  part  of  the  operation  of  the 
Habeas  Corpus  Act.  The  Constitution  of  England  is  absolutely 
silent,  where  the  Constitution  of  the  United  States  has  at  least 


21 

spoken.  The  Constitution  of  England  is  more  than  silent  in 
this  matter ;  it  says  that  nobody  but  Parliament  shall  speak  in 
regard  to  it. 

Our  Constitution,  on  the  contrary,  speaks  to  all  subordinate 
authorities  created  by  it.  It  does  not  say  "  the  Writ  of  Habeas 
Corpus"  or  "  the  Habeas  Corpus  Act,"  shall  not  be  suspended, 
a  Writ  and  Act  of  Legislative  ordination,  whether  made  or  to 
be  made,  and  presumably  to  be  repealed  or  suspended  by  similar 
authority  only ;  but  it  speaks  of  the  privilege  of  the  Writ,  by  one 
word  comprehending  the  whole  protection  of  the  principle,  and 
declares  that  it  may  be  suspended  ;  by  this  one  word  suspended, 
also  comprehending  by  the  exception,  all  temporary  and  occasional 
disturbances,  by  imprisonment,  by  denial,  delay,  or  hanging  up 
for  a  season.  Suspension  is  authorized  by  the  Constitution  by 
the  same  clause  which  guarantees  the  principle ;  and  as  the  ex- 
pression of  the  principle  includes  all  its  rights,  the  expression  of 
the  exception  includes  all  temporary  delays  and  denials  of  the 
rights  which  are  included  in  the  exception.  The  Constitution 
is  itself  the  authority,  and  all  that  remains  is  to  execute  it  in  the 
conditioned  case. 

In  regard,  therefore,  to  the  qualified  right  of  being  exempt 
from  imprisonment  without  trial,  unless  in  cases  of  rebellion 
or  invasion,  when  the  public  safety  requires  such  imprison- 
ment, we  must  discard  English  analogy.  The  Constitution  of 
the  United  States  must  be  judged  by  itself,  by  its  own  distribu- 
tion and  ordination  of  the  powers  of  Government,  by  the  jeal- 
ousies or  confidences  which  appear  in  it,  by  its  own  language  in 
fine,  and  not  by  the  English  Constitution  or  by  the  powers  of 
Parliament. 

There  is  still  another  particular  in  which  we  must  guard 
against  English  analogy,  when  we  come  to  examine  the  question 
of  power  under  the  Habeas  Corpus  clause. 

It  has  already  been  suggested  that  the  great  motive  of  Eng- 
land for  pressing  the  Habeas  Corpus  power  into  its  present  con- 
dition, was  jealousy  of  the  Crown.  It  was  this  feeling,  as  every 
one  knows,  that  led  Parliament  in  the  16th  Charles  I,  to  reduce 
the  King's  power  of  detainer  by  warrant,  expressly  to  the  same 
rank  as  that  of  any  subject  of  the  realm.  It  operated  with  more 
than  the  same  force  at  the  close  of  Charles  II.  whom  the  nation, 


22 

not  twenty  years  before,  and  from  their  undoubted  preference  of 
hereditary  monarchy,  had  recalled  from  exile  to  the  throne. 
England  deliberately  preferred  hereditary  monarchy,  with  all  its 
powers  and  dangers,  to  any  other  form  of  government ;  but  it 
was  the  sense  of  these  dangers,  specially  excited  near  the  close  of 
his  reign  by  the  occurrence  of  a  particular  case — Jenks's  case — 
and  by  the  prospect  of  a  Roman  Catholic  successor  in  the  King's 
brother,  the  Duke  of  York,  afterwards  James  II,  that  impelled 
them  to  drive  home,  as  it  were,  every  stake  that  would  prevent 
the  King  or  his  judges  or  officers,  from  removing  the  barrier  of 
the  Habeas  Corpus  Act  from  between  the  King  and  the  people. 
The  author  of  the  31  Charles  II,  Lord  Shaftesbury,  would  have 
altogether  excluded  the  successor,  the  Duke  of  York,  from  the 
throne,  by  act  of  Parliament ;  and  so  would  the  House  of  Com- 
mons that  passed  the  Habeas  Corpus  Act,  if  the  vote  of  that 
house  alone  had  been  sufficient.  But  the  House  of  Lords  could 
not  be  brought  to  concur. 

Next  to  the  benefit  of  exclusion  was  the  benefit  of  the  Habeas 
Corpus  Act ;  and  they  passed  it  with  as  little  respect  for  the 
Common  Law  principle,  and  with  as  much  regard  for  their  own 
power  as  any  Parliament  that  ever  sat ;  for  in  the  very  next 
year  after  that  Act,  the  House  of  Commons,  by  its  own  authority, 
and  by  the  speaker's  warrant,  seized  in  all  parts  of  England  and 
imprisoned  multitudes  who  had  dared  to  express  in  their  ad- 
dresses to  Charles,  their  deep  abhorrence  of  those  who  had  offen- 
sively importuned  him  to  call  a  Parliament.  They  were  called 
abhorrers.  The  Parliament  dreaded  the  King's  power,  and  loved 
their  own,  more  than  they  loved  the  general  liberty  of  the  sub- 
ject ;  and  their  fears  were  very  reasonable. 

But  in  regard  to  the  power  of  the  President,  as  the  draft  of  the 
Constitution  had  substantially  settled  it  by  major  consent  before 
the  Habeas  Corpus  clause  was  proposed,  there  was  absolutely  no- 
thing in  the  powers  of  the  office  which  could  justly  excite  jealousy, 
that  he  might  abuse  the  power  of  suspending  the  Habeas  Corpus 
privilege  with  a  view  to  enlarge  his  other  powers.  The  Presi- 
dent has  no  powers  that  can  be  abused  or  enlarged  by  himself,  ex- 
cept with  more  danger  to  himself  than  to  the  country.  Elected 
directly  or  indirectly  by  the  people  for  a  short  term  of  years — 
unable  to  veto  a  law  of  Congress  if  two-thirds  of  each  House 


23 

shall  concur  in  passing  it  against  his  advice — unable  to  make 
war,  or  to  arm  a  soldier,  or  to  call  forth  the  militia  for  any  pur- 
pose, or  to  build  a  ship,  or  enlist  a  sailor  or  marine — unable  to 
make  a  treaty,  unless  two-thirds  of  the  Senators  present  concur, 
or  to  appoint  an  ambassador,  minister,  consul,  judge,  or  any 
other  officer,  without  the  advice  and  consent  of  the  Senate,  un- 
less it  may  be  inferior  officers,  if  Congress  shall  choose  to  grant 
him  the  power — commander  in  chief  of  the  army,  but  without 
power  to  arm  a  soldier — and  of  the  navy,  but  unable  to  build  a 
ship — commander  also  of  the  militia  of  the  States,  if  Congress 
shall  see  fit  to  call  them  into  the  service  of  the  United  States — 
unable  to  adjourn  Congress  unless  both  Houses  disagree — and 
impeachable  for  any  misconduct  in  office  by  the  House  of  Rep- 
resentatives, and  triable  and  punishable  by  the  Senate  beyond 
the  power  of  pardon, — this  is  the  array  of  Presidential  powers, 
as  the  draft  of  the  Constitution  substantially  presented  them, 
when  the  Habeas  Corpus  clause  was  proposed  and  carried.  We 
cannot  be  surprised  that  in  view  of  this  scheme,  an  eminent 
English  statesman  and  man  of  letters  has  said,  that  our  Consti- 
tution of  government  exhibits  "  the  feeblest  Executive,  perhaps 
ever  known  in  a  civilized  community."  Bulwer  Lytton  has  said 
this,  after  seeing  the  Constitution  on  its  printed  pages.  M.  de 
Tocqueville  has  said  the  same,  in  more  measured  terms.  We 
who  are  living  under  it,  know  that  in  the  course  of  seventy  years, 
no  President  but  Washington  could  have  obtained  the  office  for 
a  third  term  of  four  years,  by  the  use  of  all  the  power  of  the 
office  whether  in  war  or  peace,  or  by  the  devotion  of  his  patriotic 
services.  Whether  Washington  could  have  obtained  it,  remains 
an  historical  doubt.  His  prudence,  and  his  experience  of  the 
office,  withdrew  him  from  the  canvass.  Jealousy  of  that  office 
during  the  earlier  part  of  the  Convention,  and  in  certain  of  the 
States  before  the  adoption  of  the  Constitution  by  nine  States, 
was  a  topic  with  those  who  did  not  wish  any  Constitution  or 
Union ;  but  for  sixty  years  at  least,  it  has  been  beyond  any  sen- 
sible man's  power  of  face  to  profess  it  gravely. 

It  is  but  reasonable  to  give  weight  to  this  consideration  when 
the  power  of  applying  the  exception  shall  be  considered. 

The  Convention  which  prepared  the  Constitution  were  aware  of 
all  the  circumstances  which  have  been  noticed, — the  universality 


24 

of  the  Common  Law  principle,  and  the  necessity  of  exception  to 
it  in  times  of  great  public  disorder  and  violence,  when  war  should 
be  within  the  country,  and  the  public  safety  placed  in  jeopardy, 
as  well  as  the  ordinary  course  of  justice  impeded.  They  were 
aware  also  of  the  manner  in  which  the  Constitution  of  England, 
under  the  Statute  of  Charles  II,  had  exposed  the  principle  to 
dangerous  prejudice  by  the  discretionary  power  of  Parliament ; 
and  they  deemed  it  wise  to  qualify  the  principle  itself  so  as  to 
protect  the  safety  of  the  public  in  a  season  of  great  disorder, 
and  yet  to  prevent  its  defeat  by  any  power  in  any  other  condi- 
tion of  the  country.  The  Common  Law  principle  was  suggested 
in  the  Convention  in  full  universality,  without  exception  of  any 
kind,  and  three  States  adhered  to  it  in  their  final  vote ;  but  the 
majority  deemed  it  better  for  the  Union  to  qualify  and  abridge 
the  principle  constitutionally,  by  annexing  to  it  an  exception 
most  strictly  limited  to  the  occurrence  of  certain  great  and  critical 
disturbances  in  the  public  condition  of  the  country,  and  to  let 
the  public  safety,  at  the  times  of  such  disturbance,  and  in  those 
only,  overrule  the  principle  for  the  time  and  season. 

Their  departure  from  the  English  Constitution  and  rule,  alto- 
gether set  them  aside  as  a  safe  analogy  in  the  application  of  the 
clause  finally  adopted. 

The  history  of  the  clause  is  not  without  interest,  and  pretty 
strong  application. 

The  Convention  to  form  the  Constitution  began  its  session  on 
the  14th  May,  1787,  on  which  day  there  was  no  business  done, 
nor  any  subsequent  meeting  until  the  28th  May.  On  the  fol- 
lowing day,  the  29th  May,  Mr.  Charles  Pinckney,  of  South 
Carolina,  exhibited  a  "Plan  of  a  Federal  Constitution,"  the  6th 
article  of  which,  concerning  the  legislature,  contained  the  fol- 
lowing paragraph : 

"  All  laws  regulating  commerce  shall  require  the  assent  of  two- 
thirds  of  the  members  present  in  each  house.  The  United  States 
shall  not  grant  any  title  of  nobility.  The  legislature  of  the 
United  States  shall  pass  no  law  on  the  subject  of  religion,  nor 
touching  or  abridging  the  liberty  of  the  press  ;  nor  shall  the  pri- 
vilege of  the  Writ  of  Habeas  Corpus  ever  be  suspended,  except 
in  case  of  rebellion  or  invasion." 

The  different  subjects  of  this  paragraph  have  no  common  re- 


25 

lation  between  them,  except  that  they  are  all  restrictive ;  but 
the  last  clause  is  substantially  new  in  two  respects  :  first,  in 
speaking  of  the  privilege  of  the  Writ  of  Habeas  Corpus,  and  of 
the  suspension  of  the  privilege,  which  are  not  expressions  of  the 
Common  Law,  nor  of  Blackstone,  its  commentator,  nor  of  Par- 
liamentary law ;  and,  secondly,  in  limiting  the  privilege  to  the 
case  where  there  is  neither  rebellion  or  invasion.  Deviating  from 
the  English  Constitution  and  practice  also,  it  proposed  this  uni- 
versal safeguard  of  the  privilege,  that  it  should  never  be  sus- 
pended unless  when  rebellion  or  invasion  was  upon  us,  and  war, 
either  foreign  or  civil,  was  within  the  country.  War  alone,  if  it 
was  not  attended  by  invasion,  was  not  to  have  any  influence  upon 
the  privilege ;  nor,  perhaps,  though  in  this  respect  the  language 
may  be  too  indefinite  for  legal  distinction,  any  of  those  local  se- 
ditions against  particular  laws  of  government,  which  commonly 
obtain  the  name  of  insurrections .  The  privilege  was  to  remain 
in  rigor,  and  to  be  intangible  by  any  power  whatever,  executive, 
legislative,  or  judicial,  except  when  a  foreign  enemy  should  in- 
vade the  country,  or  when  such  formidable  insurrections  exist  as 
deserve  the  name  of  rebellion. 

Derivatively,  the  word  signifies  a  renewed  war,  an  uprising  in 
war  by  a  nation  once  subdued  in  war,  which  was  the  Roman 
sense  ;  of  course,  a  war  against  the  Government  of  Rome.  Dr. 
Webster  makes  the  discrimination  between  rebellion  and  insur- 
rection, that  "  rebellion  is  an  open  and  avowed  renunciation  of 
the  authority  of  the  government  to  which  one  owes  allegiance, 
or  the  taking  of  arms  traitorously  to  resist  the  authority  of 
lawful  government ;  revolt.  Insurrection  may  be  a  rising  in 
opposition  to  a  particular  act  or  law,  without  a  design  to  renounce 
all  subjection  to  the  government.  Insurrection  may  be,  but  is 
not,  necessarily,  rebellion." 

The  Constitution,  in  defining  the  powers  of  Congress  to  call 
forth  the  militia,  uses  the  lower  term,  insurrection  ;  and  so  do 
the  Acts  of  Congress  of  1792  and  1795,  which  authorize  the 
President  to  call  forth  the  militia  of  the  States ;  and  very  pro- 
perly, as  it  was  necessary  to  provide  for  an  outbreak  in  its  lowest 
type ;  and  as  all  insurrections  may  become  rebellion,  the  force 
raised  to  suppress  insurrection  may  lawfully  suppress  it  in  all  its 
forms  and  powers. 


26 

This,  it  has  been  remarked,  was  a  deviation  from  the  English 
Constitution,  and  from  the  Parliamentary  practice  or  course  also. 
Nor  is  the  variation  factitious  or  fanciful  merely.  It  is  a  just 
political  expression  of  the  principle  of  the  universal  personal 
liberty  of  freemen  under  laws  of  their  own  making,  qualified  by 
the  internal  perils  of  their  own  government.  War,  generally, 
was  not  to  be  a  limitation  of  the  privilege,  and  ought  not  to  be. 
War,  beyond  the  limits  of  a  country,  leaves  the  courts  and  the 
laws  of  the  country  in  full  operation ;  but  invasion  by  a  foreign 
army,  or  rebellion  against  the  government,  overthrows  or  dis- 
turbs both  the  courts  and  the  execution  of  the  laws.  In  such 
cases  the  personal  liberty  of  the  freemen  of  a  country  becomes 
secondary  to  the  public  liberty  of  the  nation,  and  must  yield  for 
the  time  to  a  higher  interest  and  a  higher  principle,  the  public 
safety.  As  the  Constitution  finally  reported  says,  it  must  yield 
so  far  in  particular  instances,  as  "  the  public  safety  may  require 
it."  The  principle  of  the  Common  Law  is  not  the  principle  of 
the  Constitution  of  the  United  States.  The  principle  of  the 
English  Constitution  is  not  our  Federal  principle.  Ours  is  a 
qualification  of  that  principle,  universal  and  unchangeable  in  its 
application.  The  principle  of  the  English  Constitution  is  uni- 
versal in  name,  and  changeable  at  the  pleasure  of  Parliament. 

Whether  Mr.  Pinckney  was  the  first  to  express  this  limitation 
of  the  right  of  personal  liberty,  is  not  material.  He  would  be 
more  entitled  to  credit  for  first  introducing  it  with  his  Plan  of  a 
Federal  Constitution,  if  he  had  not  subsequently  appeared  wil- 
ling to  throw  it  away. 

The  import  of  his  clause  is,  nevertheless,  in  one  respect  ob- 
scure, by  its  imperfect  grammatical  dependence  upon  the  previous 
clause.  It  expressly  prohibited  the  Legislature  from  passing  any 
law  on  the  subject  of  religion,  or  touching  or  abridging  the 
liberty  of  the  press;  and  then,  uniting  the  clause  with  what  pre- 
ceded it  by  repeating  the  same  conjunction,  nor,  he  separated  it 
by  a  change  of  phrase,  which  is  absolute  in  its  meaning,  and  not 
relative  to  the  Legislature ;  "  nor  shall  the  privilege  of  the  Writ 
of  Habeas  Corpus  ever  be  suspended,  except  in  case  of  rebellion 
or  invasion." 

But  from  the  form  which  Mr.  Pinckney's  proposition  assumed 
afterwards,  on  the  20th  August,  it  seems  to  be  free' from  doubt, 


27 

notwithstanding  the  obliquity  of  the  language  and  the  imperfect 
grammatical  structure  of  the  sentence,  that  the  Legislature  was 
intended  by  the  mover  to  be  the  suspending  as  well  as  the  non- 
suspending  power ;  that  is  to  say,  that  the  Legislature  was  to  be 
the  rein  that  should  hold  back  or  let  free  another  power  with 
whom  the  executive  function  of  arresting  and  imprisoning  must 
remain.  The  Legislature  was  to  hold  on  to,  or  to  relax  the  pri- 
vilege. It  is  not  improbable,  therefore,  that  Mr.  Pinckney  used 
the  word  "suspended"  in  the  same  sense  with  the  legal  argument 
which  has  been  already  adverted  to. 

It  is  unnecessary  to  make  further  remark  upon  the  clause 
which  is  contained  in  Mr.  Pinckney's  "Plan  of  a  Federal  Con- 
stitution," as  it  did  not  come  up  directly  a  second  time. 

Three  months  afterwards,  on  the  20th  August,  1787,  the  first 
subsequent  occasion  in  which  the  Habeas  Corpus  clause  was  men- 
tioned in  the  Convention,  and  but  about  three  weeks  before  the 
final  adjournment  of  the  body,  Mr.  Pinckney  moved,  not  the 
adoption  of  his  "  Plan  of  a  Federal  Constitution,"  but  a  number 
of  propositions  to  be  referred  to  the  Committee  of  Detail.  On 
this  occasion  he  gave  to  his  Habeas  Corpus  proposition  the  fol- 
lowing form: 

"  The  privileges  and  benefits  of  the  Writ  of  Habeas  Corpus 
shall  be  enjoyed  in  this  government  in  the  most  expeditious  and 
ample  manner ;  and  shall  not  be  suspended  by  the  Legislature, 
except  upon  the  most  urgent  and  pressing  occasions,  and  for  a 
limited  time,  not  exceeding  months." 

This  proposition  indicated  a  disposition  to  throw  away  that 
striking  and  important  qualification  of  the  privilege  which  had 
been  expressed  in  his  Plan  of  a  Federal  Constitution,  and  to 
substitute  for  it  the  discretion  of  the  Legislature  on  the  most  ur- 
gent and  pressing  occasions,  the  omnipotent  discretion  of  Parlia- 
ment ;  and  it  would  have  brought  the  Constitution  in  this  re- 
spect into  perfect  identity  with  the  Constitution  of  England, 
with  a  maximum  limitation  of  time,  instead  of  the  pleasure  of 
Parliament. 

It  is  this  form  of  his  proposition  which  indicates  Mr.  Pinck- 
ney's design  in  its  original  form,  to  give  Congress  the  power  of 
authorizing  suspension ;  and  certainly  if  the  occasions  of  its  ex- 
ercise were  to  be  indefinite,  however  urgent  and  pressing,  as  he 


28 

now  proposed,  nothing  would  have  exceeded  the  incongruity  of 
committing  such  a  power  to  the  Executive  department  of  the 
government.  We  shall  see  how  by  making  the  power  perfectly 
definite,  and  limited  by  conditions  of  executive  cognizance  and  by 
constitutional  legislation  in  the  clause  which  made  it,  the  refer- 
ence to  Congress  became  an  incongruity,  and  was  abandoned. 

When  the  subject  was  finally  brought  up  in  the  Convention, 
on  the  28th  August,  we  have  from  Mr.  Madison  but  a  brief  and 
meagre  statement  of  Avhat  was  said  upon  the  occasion.  Indeed, 
Mr.  Madison's  minutes  hardly  deserve  the  name  of  "  Debates  in 
the  Federal  Convention,"  which  has  been  given  to  them.  They 
are  a  synopsis  or  general  view,  more  or  less  full  or  impartial,  ac- 
cording to  the  disposition  of  the  writer,  and  to  his  own  position 
as  a  member  of  the  body  ;  and  though  the  men  of  this  Convention 
probably  reflected  more  and  spoke  less  than  any  .public  body  of 
its  importance  will  ever  do  again  in  this  country,  yet  no  one  can 
read  Mr.  Madison's  work  with  attention,  without  surmising  that 
on  some  occasions  much  more  was  said  than  is  recorded ;  and  that 
this  probably  was  one  of  them. 

The  Convention  on  that  day,  the  28th  August,  were  taking  up 
and  acting  upon  any  motions,  either  generally  and  indepen- 
dently, or  in  amendment  of  any  article  or  section  of  the  proposed 
Constitution  previously  reported  by  the  Committee  of  Detail,  as 
the  delegates  were  disposed  to  suggest  them ;  and  it  is  thus,  that 
on  a  general  or  independent  motion  by  Mr.  Pinckney,  the  cause 
of  the  debate  on  the  Habeas  Corpus  is  presented  by  Mr. 
Madison. 

"  Mr.  Pinckney,  urging  the  propriety  of  securing  the  benefit 
of  the  Habeas  Corpus  in  the  most  ample  manner,  moved  that  it 
should  not  be  suspended  but  on  the  most  urgent  occasions,  and 
then  only  for  a  limited  time,  not  exceeding  twelve  months." 

Probably  this  motion  was  exactly  in  the  form  last  proposed  by 
him,  filling  the  blank  with  twelve.  Mr.  Madison  does  not  quote 
any  part  of  Mr.  Pinckney 's  remarks  with  inverted  commas. 

"  MR.  RUTLEDGE  was  for  declaring  the  Habeas  Corpus  in- 
violate. He  did  not  conceive  that  a  suspension  could  ever  be  ne- 
cessary at  the  same  time  in  all  the  States." 

This  cannot  have  been  all  that  Mr.  Rutledge  said.  The  con- 
clusion of  his  remark  is  in  apparent  contradiction  to  the  begin- 


29 

ning,  which  expressed  his  opinion  that  the  Habeas  Corpus  should 
be  declared  inviolable.  The  latter  part  seems  to  regard  suspen- 
sion of  the  Writ  or  Act  as  the  object,  and  as  being  either  local 
or  general  and  not  as  personal.  It  was  a  clear  mistake.  The 
whole  remark  is,  however,  obscure ;  and  there  may  be  some 
reason  to  doubt  whether  the  reporter's  mind,  or  the  delegate's, 
embraced  the  technical  doctrine  upon  the  subject. 

The  two  paragraphs  thus  extracted  from  Mr.  Madison's  De- 
bates, are  all  which  they  contain  on  the  subject,  before  Mr.Gouver- 
neur  Morris  made  a  motion,  which  disposed  of  the  whole  question. 
It  is  impossible,  however,  to  believe  that  this  important  question, 
introduced  on  the  second  business  day  of  the  Convention,  and 
which  had  been  in  view  of  the  delegates  for  three  months,  had 
received  as  little  of  private  consideration,  as  Mr.  Madison's  work 
represents  it  to  have  had,  of  public  comment  in  the  house. 
Enough,  however,  is  recorded  to  show  that  it  must  have  been  in 
the  minds  of  the  delegates  under  at  least  three  aspects  :  1.  Sus- 
pension of  the  privilege  and  not  of  the  Writ  or  Act.  2.  Suspen- 
sion by  the  Legislature,  and  only  by  the  Legislature.  3.  Suspen- 
sion generally,  and  by  the  department  that  would  be  intrusted 
in  rebellion  or  invasion  with  the  safety  of  the  public. 

Immediately  after  Mr.  Rutledge,  Mr.  Grouverneur  Morris 
moved  that  "  the  Privilege  of  the  Writ  of  Habeas  Corpus  shall 
not  be  suspended,  unless  where  (when)  in  cases  of  rebellion  or 
invasion,  the  public  safety  may  require  it." 

Now,  to  show  how  inconclusive  and  unsafe  it  is  to  infer  a  par- 
ticular view  to  Congress  in  this  motion,  or  in  the  clause  which 
it  proposed,  from  the  position  which  is  given  to  the  words  in  the 
ninth  section  of  the  first  article  of  the  Constitution,  as  now  ar- 
ranged, which  treats  of  the  legislative  power,  it  may  be  found  on 
recurring  to  the  Journal  of  the  Convention,  that  Gouverneur 
Morris  made  the  motion  expressly,  and  so  it  was  adopted  by  the 
Convention,  as  an  amendment  to  the  fourth  section  of  the  eleventh 
article  of  the  Constitution,  as  it  had  been  reported  by  the  Com- 
mittee of  Five  on  the  6th  August,  and  which  was  the  Judiciary 
article.  (Journal  of  Convention,  Boston,  1819,  page  301.)  The 
subsequent  change  by  a  Committee  of  Style  and  Arrangement 
(this  was  the  whole  duty  of  the  committee)  in  the  numbers  and 
sections  of  the  articles,  was  not  intended  to  change,  and  could 


30 

not  change  the  import  or  meaning  of  any  of  them  ;  but  position, 
in  the  intention  of  the  mover  of  the  clause,  might  have,  and  pro- 
bably had,  a  bearing  upon  its  meaning  ;  and  this  could  hardly 
have  been  any  other  than  to  admonish  the  judiciary  of  a  restraint 
upon  their  power  over  the  Writ,  which  did  not  proceed  from  Con- 
gress, the  body  by  which  the  particular  details  of  the  judicial 
powers  were  to  be  made.  Whatever  was  his  intention,  the  place 
assigned  by  him  to  the  amendment,  did,  as  it  were,  expressly 
negative  the  bearing  of  Mr.  Pinckney's  motion,  upon  the  Legis- 
lature. 

This  motion  by  Gouverneur  Morris,  rejected  the  reference  to 
the  Legislature  of  the  Union,  and  said  nothing  of  a  term  or  time 
of  suspension.  Mr.  Morris  had  taken  up  the  substance  of  Mr. 
Pinckney's  proposition  in  his  Plan  of  a  Federal  Constitution, 
submitted  on  the  29th  May,  had  struck  out  the  oblique  reference 
to  the  Legislature  Avhich  the  clause  in  that  Plan  had  contained,  as 
well  as  the  direct  reference  to  it  contained  in  Mr.  Pinckney's  mo- 
tion, on  the  20th  August,  and  again  on  the  28th  August,  and  pre- 
sented it  in  the  words  above  given. 

"  MR.  WILSON  doubted  whether  in  any  case  a  suspension  could 
be  necessary,  as  the  discretion  now  exists  with  the  judges,  on 
most  important  cases,  to  keep  in  gaol  or  admit  to  bail." 

The  delegate  from  Pennsylvania  seems,  from  professional  as- 
sociations, to  have  thought  the  now  superannuated  discretion  of 
the  judges  in  capital  cases,  was  a  good  substitute  for  any  power 
of  suspension,  legislative  or  executive ;  and  to  have  looked  at 
the  suspension  referred  to,  as  an  act,  and  a  judicial  act,  dis- 
pensing with  any  interference  by  Congress. 

The  entire  history  of  the  clause,  as  recorded  by  Mr.  Madison, 
is  thus  closed : 

"  The  first  part  of  Mr.  Gouverneur  Morris's  motion  to  the 
word  unless,  was  agreed  to  nem  con.  On  the  remaining  part, 
ayes,  7;  no,  North  Carolina,  South  Carolina,  Georgia,  3."* 

Mr.  Morris's  clause  is  the  same  which  now  stands  in  the  9th 
section  of  the  1st  Article  of  the  Constitution,  when  being  in 


*  There  were  four  delegates  from  South  Carolina,  of  whom  three  must  have  voted 
against  it.  Probably  Mr.  Pinckney  was  one  of  the  three,  as  his  own  motion  was  ex- 
cluded by  that  of  Mr.  Morris. 


31 

substitution  of  where,  perhaps  by  the  Committee  on  Style  and 
Arrangement. 

Looking  at  this  clause  as  it  is  contained  in  the  Constitution, 
with  the  aid  of  its  short  history,  it  is  the  statement  of  a  funda- 
mental rule  of  personal  liberty  among  freemen  in  the  United 
States,  universal,  but  not  unqualified,  and  not  calling  for  any 
legislative  action  to  enforce  or  apply  the  qualifying  exception. 

The  word  Legislature,  which  was  contained  in  Mr.  Pinckney's 
"Plan  of  a  Federal  Constitution,"  and  probably  also  in  his 
motion,  when  the  subject  was  finally  disposed  of,  was  thus  cast 
aside,  and  an  entirely  new  form  and  new  limitations  were  given  to 
the  principle ;  the  qualification  or  exception  being  founded  on 
public  facts,  upon  the  occurrence  of  which,  the  Constitution  au- 
thorizes the  suspension  of  the  privilege,  by  the  act  of  that 
power  which  is  competent  to  decide  upon  them. 

What  department  or  power  should  have  the  authority  to  de- 
clare what  the  public  safety  required  in  such  a  case,  the  Con- 
stitution neither  expressly  declares  nor  expressly  intimates,  by 
any  word  or  words  whatever.  The  clause  was  a  substitute  for 
Mr.  Pinckney's  original  clause,  which  contained  the  word  Legis- 
lature, as  his  second  proposition  did  also,  and  rejected  that 
feature  of  it  without  the  least  ambiguity.  If  these  propositions 
of  Mr.  Pinckney  intended  to  confer  this  power  upon  the  Legisla- 
ture, the  substitute  disclaimed  the  intention  by  rejecting  it. 

The  clause  has  no  phrase  or  word  in  it,  which  either  directly 
or  by  any  fair  and  reasonable  implication,  gives  or  confines  this 
authority  to  Congress,  or  takes  it  away  from  the  Executive. 
The  whole  question  of  deciding  with  authority,  when  in  cases 
of  rebellion  or  invasion,  the  public  safety  requires  the  suspen- 
sion of  the  personal  privilege  of  the  Writ  of  Habeas  Corpus,  is 
left  by  this  clause  to  the  person,  body,  or  power,  invested  by 
other  parts  of  the  Constitution,  with  the  care  of  the  public  safety, 
to  this  intent  and  effect,  in  time  of  rebellion  or  invasion.  There 
can  be  no  reasonable  doubt  about  this. 

We  may  argue  from  the  nature  of  the  right,  or  from  the  gua- 
rantee which  it  receives  from  the  fundamental  law  of  the  Union, 
or  from  the  condition  in  which  the  government  was  to  be  placed 
by  internal  war,  from  rebellion  or  invasion,  that  the  authority 
is  to  be  exercised  by  this  department  of  government,  and  not  by 


32 

that  or  by  another ;  but  we  cannot  argue  reasonably  that  the  clause 
itself  gives  any  color  of  authority  to  one  department  more  than 
another,  except  as  one  department  of  the  government  and  not 
another  is  more  specially  charged  by  other  parts  of  the  Con- 
stitution, with  the  care  of  the  public  safety  upon  the  occasion 
referred  to ;  nor  can  it  be  fairly  argued  upon  principles  of 
analogy,  drawn  from  the  English  Constitutional  or  Parliamen- 
tary history,  for  the  clause  is  entirely  un-English  as  it  is  truly 
American.  It  is  un-English,  because  it  ties  up  the  Legislative 
power,  as  well  as  all  other  power ;  and  it  is  American,  because  it 
is  of  American  origin,  and  is  conservative  of  personal  freedom  in 
general,  and  also  of  the  public  safety  in  times  of  imminent  inter- 
nal danger  of  a  specific  character. 

The  present  position  of  the  clause  in  the  Constitution  is  not 
of  the  least  importance.  According  to  the  Journal  of  the  Conven- 
tion, the  clause  was  offered  as  an  amendment  to  the  fourth  sec- 
tion of  the  article  on  the  Judiciary.  If  position  as  a  section  of 
an  article  carries  power  to  the  article,  then  the  original  motion  as 
adopted  carried  power  to  the  Judiciary,  and  must  have  regarded 
suspension  of  the  privilege  as  a  judicial  act,  and  not  as  depen- 
dent on  a  Legislative  act.  The  simple  and  clear  language  of 
the  clause  is,  in  what  it  directly  expresses,  restrictive  of  all 
power  ;  in  what  it  inversely  expresses,  it  is  permissive  of  some 
power,*  and  authoritative  as  to  its  application  in  the  contingen- 
cies stated.  It  affirms  the  common  law  principle  with  an  excep- 
tion for  the  public  safety,  thus  qualifying  the  absolute  rule  of 

*  If  the  negation  of  power  by  the  clause  had  been  complete,  as  according  to  Mr. 
Madison's  Debates  was  desired  by  North  Carolina,  South  Carolina,  and  Georgia,  so 
much  the  weaker  had  been  the  Government  of  the  United  States  to  suppress  rebellion 
and  the  States  none  the  stronger,  except  in  ability  to  rebel,  which  is  their  weakness 
also.  The  affirmative  or  permissive  power  in  the  clause  is  simply  a  power  to  suppress 
rebellion,  or  to  repel  invasion.  By  attributing  it  to  the  Executive,  the  whole  govern- 
ment of  the  Union  is  organically  stronger  in  that  arm  which  has  the  main  labor  and 
control  in  both  the  contingencies  ;  and  it  is  the  only  arm  that  is  directed  by  a  single 
eye.  If  it  had  been  given  to  Congress,  not  only  would  it  have  wanted  that  single 
eye,  but  it  would  have  been  liable  to  sway  from  extreme  rigor  to  extreme  relaxation, 
by  antipathy  or  sympathy  for  the  constituents  implicated  in  the  internal  war ;  and 
would,  moreover,  have  been  productive  of  those  agitations  which  mark  the  suspen- 
sions of  the  privilege  by  Parliament,  as  they  must  necessarily  mark  every  large  repre- 
sentative body  at  such  a  crisis.  There  are  some  striking  and  impressive  remarks 
upon  the  mere  negation  of  power  to  government,  in  LIBBER'S  excellent  work  "  On 
Civil  Liberty  and  Self -Government,"  enlarged  edition,  ]859,  p.  372. 


33 

the  common  law,  and  defending  or  withdrawing  it  from  all  other 
restrictions.  It  is  not  from  restriction  or  contingent  permission 
like  this,  that  power  can  be  fairly  derived  to  Congress,  by  posi- 
tion in  a  section  of  an  article  which  treats  of  Congress.  The 
power  must  depend  infinitely  more  upon  the  nature  of  the 
contingencies  themselves,  than  upon  position.  It  is  a  case,,  in 
which  neither  the  clause  itself  points  directly  to  the  power,  nor 
does  the  power  given  to  any  of  the  departments  point  directly 
to  the  clause ;  but  the  effect  of  both  is  like  a  resultant  in  me- 
chanics, proceeding  from  the  two  forces  of  the  clause  and  of 
that  department,  which,  from  the  nature  of  the  contingencies,  must 
be  one  of  the  combining  parties  to  produce  it ;  and  the  Execu- 
tive alone  is  that  department. 

For  the  reason  probably  that  the  clause  is  directly  restrictive, 
the  committee  of  Convention  appointed  to  revise  the  style  and 
arrangement  of  the  articles  agreed  to,  placed  it  in  the  ninth  sec- 
tion of  the  first  article  of  the  Constitution,  which  is  restrictive 
from  beginning  to  end.  With  the  exception  of  this  clause,  and 
one  that  precedes  it,  and  prohibits  the  prohibition  by  Congress 
of  the  importation  of  slaves  prior  to  1808,  there  is  not  a  para- 
graph in  the  section  which  does  not  begin  with  a  restraining  and 
disabling  No.  Most  of  these  paragraphs  restrain  and  disable 
Congress.  One  of  them  restrains  the  Executive  department ; 
another  of  them  restrains  all  persons  who  hold  an  office  of  trust 
or  profit  under  the  United  States,  in  whatever  department. 

In  the  first  of  the  instances,  the  general  negative  of  these  re- 
strictions is  qualified  by  an  express  limited  affirmation  of  the  power 
of  Congress,  to  prevent  a  sweeping  or  unqualified  disability ;  and 
there  is  a  limited  affirmation  which  qualifies  the  general  negative 
in  the  Habeas  Corpus  clause ;  but  with  this  remarkable  difference, 
that,  while  the  power  of  Congress  is  expressly  affirmed  in  the 
first,  it  is  not  expressly  affirmed  in  the  second.  The  word  Con- 
gress is  not  there.  It  existed  in  Mr.  Pinckney's  proposition  and 
was  left  out  in  Mr.  Morris's.  Considering  the  facility  with 
which  it  might  have  been  introduced  or  retained,  we  may  say  it 
was  struck  out.  Position  in  the  ninth  section  of  the  first  article 
of  the  Constitution  is  not  only  of  no  avail,  but  the  argument 
from  position  is  more  than  countervailed  by  expression ;  and  is 
emphatically  overcome  by  the  Journal  of  the  Convention. 

3 


34 

But  no  instrument,  moreover,  permits  the  interpretation  of  its 
clauses  to  be  affected  by  position,  less  than  the  Constitution  of 
the  United  States.  The  matter  of  arrangement,  especially  as 
to  the  independent  propositions  made  and  agreed  to  in  Conven- 
tion, and  most  especially  as  to  the  Habeas  Corpus  clause,  which 
was  not  contained  in  the  draft  of  a  Constitution  reported  by  the 
Committee  of  Detail  on  the  sixth  of  August,  when  the  great 
plan  and  principles  of  the  three  departments  had  been  discussed 
and  agreed  to  by  a  majority,  had  less  consideration  than  any 
other  subject.  The  Committee  on  Style  and  Arrangement  was 
the  best  possible ;  but  though  several  amendments  to  parts  of 
their  report  were  offered  in  the  Convention,  no  articulate  con- 
sideration was  given  to  the  order  and  position  of  the  different 
sections  and  clauses,  as  reported  by  that  Committee.  From  the 
manner  in  which  the  amendments  were  made  to  the  Constitution 
after  it  was  adopted,  all  but  the  llth  and  12th  have  no  position 
at  all.  One  of  these  was  intended  to  abridge  the  judicial  power, 
the  other  to  alter  the  mode  of  electing  the  President.  The  whole 
must  have  the  same  meaning  wherever  they  may  be  placed. 
Their  most  natural  position  is  in  the  same  section  with  the  Ha- 
beas Corpus  clause,  as  they  are  uniformly  restrictive. 

The  most  important  differences  between  the  Constitutions  of 
England  and  the  United  States  in  regard  to  the  Habeas  Corpus 
privilege,  and  between  the  modes  in  which  an  exception  to  the 
privilege  is  authorized,  may  now  be  recapitulated. 

1.  The  Constitution  of  England,  properly  speaking,  authorizes 
nothing  in  this  respect,  nay,  negatives  suspension,  by  the  univer- 
sal principle  of  the   Common  Law,  that  there  is  no  exception 
under  any  circumstances  to  the  right  of  bail,  trial,  or  discharge, 
without  delay. 

The  Constitution  of  the  United  States  affirms  that  principle, 
with  one  exception,  and  authorizes  a  departure  from  it  in  that 
excepted  case. 

2.  The  voice  of  Parliament,  equal  in  the  ears  of  the  English 
Courts,  and  more  than  equal,  to  the  voice  of  the  unwritten  Con- 
stitution, authorizes  Parliament,  and  under  what  circumstances 
it  pleases,  to  authorize  a  denial  of  the  privilege. 

The  Constitution  of  the  United  States,  unchangeable  by  Con- 
gress, declares  by  its  own  will,  an  exception  to  the  privilege,  and 


35 

authorizes  it  to  be  made,  and  the  privilege  to  be  denied  for  a 
season,  in  the  excepted  cases  and  in  no  others. 

In  other  words,  Parliament  authorizes  an  exception  to  be 
made,  dependent  for  execution  on  the  pleasure  of  the  Crown. 
The  Constitution  of  the  United  States,  establishes  the  exception 
of  rebellion  or  invasion,  and  the  requirement  of  the  public  safety, 
and  authorizes  the  exception  to  be  executed  by  the  body  that  is 
under  the  Constitution  empowered  to  declare  these  facts ;  but 
without  saying  by  what  department  it  shall  be  made. 

3.  Under  the  Constitution  of  England,  a  law  of  Parliament 
alone  can  make  an  exception  in  England,  to  be  applied  as  Par- 
liament directs.     In  the  United  States  the  exception  is  made  by 
the  Constitution,  with  authority  to  one  of  the  departments  to 
apply  it,  without  expressly  saying  which. 

4.  In  England  the  denial  of  the  right  of  bail,  trial  or  dis- 
charge, is  the  joint  effect  of  the  Statute  and  of  the  Act  of  arrest 
and  detention  by  the  Crown. 

In  the  United  States  it  is  the  joint  effect  of  the  Constitution 
and  of  the  arrest  and  detention  by  the  department,  which  is 
competent  to  order  it. 

If  the  clause  in  the  Constitution  had  said  of  the  WRIT  of 
Habeas  Corpus,  or  of  a  Habeas  Corpus  ACT,  enacted  or  to  be 
enacted,  what  it  says  of  the  PRIVILEGE  of  the  Writ,  there  would 
have  been  some  ground  for  the  Argument,  that  a  Writ  of  Habeas 
Corpus,  and  a  Habeas  Corpus  Act,  being  the  work  of  the  Legis- 
lature, the  suspension  of  the  Writ  or  Act  should  be  made  by  the 
Legislature  also.  But  the  privilege,  impersonal  privilege  being 
alone  spoken  of,  an  act  of  arrest  and  detention  by  the  depart- 
ment which  is  competent  to  ascertain  the  conditions  of  the  ex- 
ception, together  with  the  effect  imparted  by  the  Constitution, 
is  sufficient,  and  no  legislative  Act  is  necessary, — unless,  and 
this  is  the  gist  of  the  whole  question,  a  legislative  Act  is  neces- 
sary to  ascertain  the  conditions  of  the  exception. 

The  gist  of  the  question  seems  then  to  be  this,  whether  it 
requires  an  Act  of  the  Legislature,  to  declare  that  Rebellion  or 
Invasion  exists  in  the  Country,  and  that  the  public  safety  re- 
quires the  suspension  of  the  privilege.  If  it  does,  then  Congress 
alone  has  the  power  to  pass  such  an  Act :  if  it  does  not,  then 
the  power  of  enforcing  the  execution  falls  necessarily  to  the 


•  36 

Executive.  The  judicial  department  cannot  be  the  body  to  in- 
terpose, because  its  functions  are  not  directly  pointed  to  any  of 
the  facts,  either  Rebellion  or  Invasion,  or  the  demands  of  the 
public  safety  on  such  occasions.  Indirectly,  and  in  cases,  or 
judicial  controversies,  they  might  take  cognizance  of  each  of 
them. 


This  question  of  the  power  of  Congress  over  this  matter,  has 
never  been  decided,  authoritatively ;  and  it  has  never  been  argued 
with  any  care,  or  perhaps  argued  at  all,  by  a  Court,  or  by  Coun- 
sel in  Court.  So  far  as  authority  goes,  it  is  at  this  time,  a 
question  of  the  first  impression.  There  probably  has  been,  and 
still  is,  a  strong  professional  bias,  in  favor  of  the  power  of 
Congress,  perhaps  a  judicial  bias,  if  that  be  possible.  It  was 
not  easy  to  avoid  the  bias  under  the  influence  of  English  analogy, 
which  some  preceding  remarks  were  intended  to  disqualify ;  but 
there  is  nothing  on  the  point,  that  is  judicially  authoritative. 

Chief  Justice  Taney's  opinion  in  Merryman's  case  is  not  an 
authority.  This  of  course  is  said  in  the  judicial  sense.  But  it 
is  not  even  an  argument,  in  the  full  sense.  He  does  not  argue 
the  question  from  the  language  of  the  clause,  nor  from  the  his- 
tory of  the  clause,  nor  from  the  principles  of  the  Constitution, 
except  by  an  elaborate  depreciation  of  the  President's  office, 
even  to  the  extent  of  making  him,  as  Commander-in-Chief  of 
the  Army  called  from  the  States  into  the  service  of  the  United 
States,  no  more  than  an  assistant  to  the  Marshal's  posse :  the 
deepest  plunge  of  judicial  rhetoric.  The  opinion,  moreover,  has 
a  tone,  not  to  say  a  ring,  of  disaffection  to  the  President,  and  to 
the  Northern  and  Western  side  of  his  house,  which  it  is  not 
comfortable  to  suppose  in  the  person  who  fills  the  central  seat 
of  impersonal  justice.  But  this  may  be  the  apprehensiveness  of 
the  reader. 

The  remarkable  feature  of  this  opinion,  is  that  for  proof  of 
the  President's  exclusion  from  the  power,  the  Chief  Justice  dwells 
upon  the  President's  brief  term  of  office — his  responsibility,  by 
impeachment  for  malfeasance  in  office — the  power  of  Congress 
to  withhold  appropriations  for  the  Army,  of  which  he  is  Com- 
mander-in-Chief, and  to  disband  it  if  the  President  uses  it  for 


improper  purposes  —  his  limited  power  of  appointment  —  his 
limited  treaty-making  power — his  inability  to  appoint  even  infe- 
rior officers,  unless  he  is  authorized  by  Congress  to  do  so.  Chief 
Justice  Taney  has  elaborately  stated  all  this,  without  appearing 
to  perceive,  that  these  very  considerations  may  have,  and  cer- 
tainly ought  to  have,  induced  the  Convention  to  devolve  upon 
the  President,  exclusively,  the  trust  and  power  of  suspending  or 
not  suspending  the  privilege  in  time  of  rebellion,  as  he  should 
think  the  public  safety  required.  The  constitutional  limita- 
tions of  the  office  make  the  President  the  safe  and  the  safest  de- 
positary of  such  a  discretion.  There  can  be  little  danger  of 
abuse  from  an  office  of  such  powers.  It  was  the  great  power  of 
a  King  of  England,  that  was  the  operative  motive  with  Parlia- 
ment for  taking  the  power  of  suspension  from  him  ;  and  they 
have  left  it  in  a  body  that  is  of  equal  power  under  the  Constitu- 
tion, and  apparently  on  its  way  to  greater. 

Chief  Justice  Taney  quotes  the  language  of  one  whom  he 
justly  calls  his  "great  predecessor,"  as' standing  in  place  of  ar- 
gument and  of  other  authority  with  him ;  and  if  that  predecessor, 
in  a  case  properly  bringing  up  the  point,  had  discussed  it  after 
argument  by  counsel,  as  he  discussed  all  other  constitutional 
questions  so  brought  up  for  judgment,  all  would  have  been  silent; 
and,  factoque  Jiic  fine,  there  would  have  been  rest  to  the  ques- 
tion. He  too,  that  great  judge  and  statesman,  had  his  bias, 
though  it  was  all  on  the  side  of  the  Constitution,  and  of  its  due 
operation  in  all  parts ;  but,  with  his  vigorous  mind  and  pure 
heart,  he  drew  himself  up  erect,  to  the  elimination  of  that  and 
every  other  bias,  when  he  pronounced  judgment.  There  was 
nothing  thwart  in  his  nature.  The  same  straight  and  long  limbs 
of  body  and  mind,  which  he  had  when  he  first  drew  his  youthful 
sword  in  defence  of  his  country,  he  continued  to  have  to  the  last 
sands  of  his  patriarchal  life.  It  is  the  occasion  of  deep  grief, 
that  he  did  not  live  to  handle  this  and  another  question  of  Con- 
stitutional Law,  that,  more  than  all  others,  have  agitated  this 
nation.  His  analysis  and  authority  would  have  settled  them 
both  forever. 

But  the  language  of  Chief  Justice  Marshall,  whatever  be  its 
meaning,  was  not  used  in  a  case  which  brought  up  the  question. 
The  case  of  Ex  parte  Bolman  in  4  Cranch,  could  not  bring  up 


38 

the  question  whether  the  President  or  Congress  had  the  power 
of  suspending  the  privilege  of  the  Writ  in  cases  of  rebellion  or 
invasion.  There  was  no  rebellion  nor  invasion  at  the  time  ;  and 
no  suspension  of  the  privilege  by  either  Congress  or  the  Presi- 
dent. 

The  question  then  before  the  Court,  the  first  question  in  Ex 
parte  Bolman,  was  whether  the  Supreme  Court,  having  no 
original  jurisdiction  of  the  case,  could  issue  a  Writ  of  Habeas 
Corpus  to  bring  up  the  body  of  Bolman,  and  the  record  of  his 
commitment  by  the  Circuit  Court  for  the  District  of  Columbia. 
The  Court  was  somewhat  divided  upon  the  point,  and  the  writ 
was  issued,  two  judges  out  of  the  five  dissenting ;  but  the  man- 
ner in  which  it  was  argued,  not  at  all  the  necessities  of  the  case, 
induced  the  Chief  Justice  to  say,  "  that  if  at  any  time  the  public 
safety  should  require  the  suspension  of  the  power  vested  by  this 
Act  (the  Judiciary  Act  of  1789),  in  the  Courts  of  the  United 
States,  it  is  for  the  Legislature  to  say  so.  That  question  de- 
pends on  political  considerations,  on  which  the  Legislature  are 
to  decide.  Until  the  Legislative  will  be  expressed,  this  Court 
can  only  see  its  duty  and  must  obey  the  laws." 

Perhaps  there  is  nothing  in  this  language  that,  taken  with 
reference  to  the  case,  is  open  to  exception.  The  power  to  issue 
the  Writ  was  the  question ;  and  as  the  Legislature  had  given 
this  power  to  'the  Court,  it  was  apparently  reasonable  to  say, 
that  the  Legislature  only  could  suspend  that  power.  The  whole 
language  does  however  say  further,  that  if  the  public  safety 
should  require  the  suspension  of  the  powers  vested  in  the  Courts, 
adverting,  perhaps,  to  the  language  of  the  Habeas  Corpus  clause 
in  the  Constitution,  it  was  for  the  Legislature  to  say  so. 

But  there  was  nothing  before  the  Chief  Justice  to  raise  the 
distinction  between  Congress  and  the  President ;  nor  between 
the  privilege  of  the  Writ  as  descriptive  of  a  personal  right,  and 
the  Writ  itself  as  authorized  by  law  ;  nor  between  the  operation 
of  the  Constitution  itself,  and  the  operation  of  a  law  of  Congress. 
Certainly  Chief  Justice  Marshall  would  not  have  said,  that  if 
the  Constitution,  either  expressly  or  impliedly,  had  given  to  the 
President  the  power  to  suspend  the  privilege,  his  Act  would  not 
be  as  effectual  upon  the  Courts,  and  upon  the  law  of  Congress 
which  gave  power  to  the  Courts  to  issue  the  Writ,  as  any  Act  of 


39 

Congress  would  be.  The  proper  question  would  then  have  been 
between  the  Constitution  and  Congress,  and  not  between  an  Act 
of  Congress  and  the  Court.  It  was  however  altogether  obiter, 
whatever  was  the  Chief  Justice's  meaning  ;  and  was  no  authority, 
though  it  is  all  that  Chief  Justice  Taney  cites  as  of  judicial  de- 
cision. 

Judge  Story's  remarks,  which  are  also  referred  to  in  Merry- 
man's  case,  are  of  even  less  weight ;  not  from  personal  considera- 
tions, but  as  they  are  those  of  a  Commentator,  and  not  of  a 
Judge  in  his  place.  The  point  of  them  however  is  easily  taken 
away. 

In  commenting  very  briefly  upon  abuses  of  personal  liberty  in 
England,  including  abuses  by  Parliament,  and  of  the  restraint 
placed  upon  them  by  the  clause  in  the  Constitution  of  the  Uni- 
ted States,  Judge  Story  remarks  :  "  Hitherto  no  suspension  of 
"  the  Writ  has  been  authorized  by  Congress,  since  the  establish- 
"  ment  of  the  Constitution. — It  would  seem,  as  the  power  is  given 
"  to  Congress  (sic)  to  suspend  the  Writ  of  Habeas  Corpus  in  case 
"  of  Rebellion  or  Invasion,  that  the  right  to  judge  whether  the 
"  exigency  had  arisen,  must  exclusively  belong  to  that  body." — 
As  this  is  printed  in  Judge  Story's  work,  the  last  clause,  which 
begins  diffidently  enough,  proceeds  at  once  to  do  something 
more  than  to  beg  the  question.  It  demands  or  extorts  it.  The 
very  question,  is  whether  the  power  is  given  to  Congress.  Cer- 
tainly no  power  is  given  in  terms  to  any  body  to  suspend  the 
WRIT.  There  is  more  in  the  same  sentence  on  which  it  is  not 
necessary  to  remark. 

In  the  absence  then  of  authority  upon  the  point,  it  is  neces- 
sary to  repeat, — that  the  clause  in  the  Constitution  uses  a  well- 
understood  phrase,  to  express  a  well-known  meaning,  indepen- 
dently of  all  legal  forms.  It  means  that  bail,  trial,  or  discharge 
from  imprisonment  shall  not  be  denied  to  any  freeman,  except 
in  a  certain  description  of  case ;  but  that  when  that  case  shall 
occur,  it  may  be  denied  for  a  season,  if  the  public  safety  re- 
quires it. 

Congress,  under  the  Constitution,  might  adopt  any  form  of 
judicial  relief,  and  endow  its  judicial  department  accordingly — 
the  civil  law  process,  "  de  homine  libero  exhibendo,"  or  the 
Spanish  "  el  despaclio  de  manifestacion."  If  Congress  had  taken 


40 

either,  it  would  not  have  altered  in  the  least  the  effect  of  the 
clause  in  the  Constitution.  The  privilege  of  "  the  Writ  of  Ha- 
beas Corpus"  must  necessarily  have  been  understood  to  assert 
the  privilege  of  relief  from  imprisonment  by  bail,  trial,  or  dis- 
charge. 

The  writ  of  Habeas  Corpus  was  better  known  in  the  States, 
and  therefore  most  appropriate ;  but  the  privilege  is  not  insepa- 
rably bound  to  that  or  any  other  specific  remedy.  The  refer- 
ence to  the  Writ,  was  to  describe  the  privilege  intelligibly,  not 
to  bind  it  to  a  certain  form. 

The  privilege  is  guaranteed  to  all  freemen  generally  by  the 
Constitution ;  and  the  denial,  for  a  season,  authorized. 

The  question  is,  by  whom  the  denial  or  interruption  may  be 
made ;  and  this  must  be  decided  by  the  constitutional  powers 
of  the  different  departments,  as  that  instrument  has  established 
them,  and  as  the  nature  of  the  conditions  requires. 

The  clause  does  not  by  its  necessary  implication  give  power 
to  any  department  to  authorize  the  suspension  of  the  privilege, 
but  it  gives  power  to  suspend  it  in  the  cases  conditioned, — that 
is  to  say,  to  deny  it  temporarily,  with  the  effect  declared  by  the 
Constitution.  The  Constitution  itself  authorizes  the  suspension 
under  the  appointed  conditions. 

The  suspension  of  the  privilege  under  this  constitutional 
power,  becomes  an  executive  act,  and  not  a  legislative  act.  A 
power  by  tie  Constitution  to  authorize  the  suspension  of  a  pri- 
vilege, would  be  a  power  to  authorize  it  by  legislation,  and  then 
the  suspension  would  be  an  executive  act,  under  the  legislative 
authority.  The  Constitution  itself  authorized  the  suspension 
under  conditions,  and  therefore  the  suspension  in  the  cases  sup- 
posed, is  an  Executive  Act.  The  same  well-understood  mean- 
ing of  "  the  privilege  of  the  Writ  of  Habeas  Corpus,"  makes  the 
guarantee  of  the  privilege  mean  what  it  does,  though  not  ex- 
pressed, and  also  makes  the  "suspension"  of  the  privilege  mean 
what  it  does,  though  not  expressed,  namely,  a  denial  for  a  season 
of  bail,  trial,  and  discharge.  Under  the  power  given  by  the 
Constitution,  this  denial  is  an  executive*  act,  and  it  can  never 
become  anything  but  an  executive  act. 

If  the  conditions  under  which  the  Act  of  denial  for  a  season 
is  executed,  do  of  themselves  require  legislation,  or  are  legisla- 


41 

tive  in  their  character,  then  so  far,  it  must  be  admitted,  that 
legislation  must  enter  into  the  execution  of  the  power;  but  Con- 
gress, personally,  can  never  suspend  the  privilege,  by  act  on  the 
person  to  be  affected. 

Parliament  never  does  this.  It  authorizes  the  Crown  to  do  it, 
or  declares  the  effect  of  what  the  Crown  shall  do.  This  is  all 
that  Congress  can  do — give  effect  to  an  Act  by  the  President  or 
somebody  else — and  this  the  Constitution  does  already. 

The  question  is  whether  the  conditions  of  rebellion  and  inva- 
sion, and  the  demands  of  the  public  safety  in  such  a  conjuncture, 
require  declaratory  legislation  to  establish  them.  If  they  do, 
then  it  would  seem  that  Congress  alone  has  the  power  to  esta- 
blish them.  If  they  do  not, — if  in  this  special  conjuncture  they 
are  within  the  proper  functions  of  the  Executive  Department  of 
our  Government,  then  the  President  may  establish  them,  and  the 
power  of  denying  the  privilege  for  a  season,  belongs  wholly  to 
his  office,  with  the  effect  which  the  Constitution  allows. 

The  special  conjuncture  is  referred  to,  because  the  authority 
of  the  Legislature  to  provide  by  law  for  the  general  safety  of 
the  nation,  will  not  be  brought  into  question.  But  the  conditions 
under  which  this  privilege  may  be  denied,  are  peculiar,  and  de- 
mand consideration. 

There  are  two  conditions  by  the  clause  in  the  Constitution, 
which  are  to  precede  the  exercise  of  the  power  to  suspend  the 
privilege.  Speaking  with  reference  to  the  present  day,  they  are 
rebellion  and  the  requirement  of  the  public  safety,  that  is,  that 
the  public  safety  requires  the  suspension  of  the  privilege.  It  is 
not  public  safety  in  general,  but  public  safety  in  that  conjuncture 
of  rebellion  that  is  referred  to  by  the  Constitution ;  for  the 
clause  has  connected  inseparably  the  suspension  of  the  privilege 
with  rebellion,  or  with  invasion  when  that  happens-.  Rebellion 
and  the  suspension  of  the  privilege  are  contemporaneous  and  con- 
terraneous.  They  occupy  the  same  country  at  the  same  time. 
They  are  indissolubly  connected  as  cause  and  consequence. 
They  have  a  necessary  relation,  not  only  to  give  existence  to 
the  power  of  suspension,  but  in  the  exercise  of  it ;  and  to  such  a 
degree,  that  if  the  power  were  exercised  except  for  the  defeat  or 
suppression  of  rebellion,  it  would  be  the  widest  possible  depar- 
ture from  the  spirit  of  the  Constitution,  and  from  official  duty. 


42 

If  this  power  is  devolved  by  the  Constitution  upon  the  Presi- 
dent, no  one  can  doubt,  that  if  the  President  were  to  suspend 
the  privilege  of  any  person,  except  upon  reasonable  ground  of 
belief,  that  to  bail,  try,  or  discharge  him  in  that  conjuncture, 
would  prejudice  the  public  safety,  in  the  very  matter  of  the  re- 
bellion, it  would  be  unconstitutionally  suspended,  and  be  at- 
tended by  the  grave  responsibility  which  the  Constitution  asserts. 

This  is  the  Constitutional  aspect  of  the  suspension  of  the 
privilege  of  the  Writ  of  Habeas  Corpus,  and  of  the  public  safety 
which  is  concerned  in  the  exercise  of  the  power. 

Now  to  ascertain  whether  as  to  these  two  matters  of  rebellion 
and  the  public  safety  as  affected  by  it,  the  President  is  officially 
competent  to  decide  and  declare  them,  there  is  no  necessity  to 
analyze  the  powers  of  the  Executive  with  any  elaboration.  That 
the  duties  of  the  President  to  take  care  that  the  laws  be  faith- 
fully executed,  and  to  defend  and  protect  the  Constitution  as 
well  as  to  support  it,  and  both  to  decide  the  fact  of  rebellion, 
and  to  measure  the  danger  of  the  public  arising  from  it,  and 
what  the  public  safety  requires  in  this  behalf,  do  belong  to  the 
Executive  office  of  the  President,  we  have  the  constant  and  con- 
tinued voice  of  the  Legislature,  the  voice  of  the  law  itself,  for 
sixty-five  years,  from  the  very  next  session  of  Congress  after 
the  suppression  of  the  Western  Insurrection,  in  1794,  down  to 
the  present  insurrection,  raised  to  its  highest  power  of  rebellion 
against  the  Government. 

That  voice  is  to  this  effect,  that  not  only  is  it  the  President's 
power  to  declare  the  existence  of  rebellion,  and  what  the  public 
safety  requires  in  regard  to  it,  but  that  it  is  his  duty. 

The  power  to  do  this  is  not  granted  to  him  by  Congress,  but 
it  is  assumed  by  Congress  to  be  both  his  power  and  his  duty  to 
exercise  it ;  and  very  large  power  is  given  to  him  upon  that 
hypothesis,  to  assist  in  the  execution  of  what  is  manifestly  a 
Legislative  power,  namely,  the  calling  forth  the  Militia. 

It  was  the  assumption  of  the  Legislature  in  regard  to  inva- 
sion, from  the  very  first  moment  that  Congress,  in  the  dawn  of 
the  Government,  provided  for  calling  forth  the  Militia  to  repel 
invasion  or  to  suppress  insurrection  ;  that  it  was  the  President's 
duty  to  declare  and  decide  its  existence.  It  was  the  assump- 
tion of  Congress  also,  in  regard  to  the  President's  power  and 


43 

duty  to  say  what  the  public  safety  required,  both  in  rebellion 
and  invasion.  But  in  this  first  Act  of  1792,  in  one  of  those 
spasms  of  jealousy,  by  which  party  sometimes  throws  legislation 
out  of  its  Constitutional  path,  when  the  bill  was  before  the  House 
of  Representatives,  an  amendment  of  the  most  absurd  kind  was 
proposed  to  the  section  which  provided  for  the  case  of  Insurrec- 
tion, deviating  from  the  course  adopted  by  a  preceding  section 
in  regard  to  invasion,  namely,  that  before  the  power  given  to 
the  President  by  the  Act  to  call  forth  the  Militia  should  arise, 
an  Associate  Justice  or  a  District  Judge  of  the  United  States 
should  notify  the  President,  that  the  laws  of  the  United  States 
were  opposed,  or  the  execution  of  them  obstructed,  by  combina- 
tions too  powerful  to  be  suppressed  by  the  ordinary  course  of 
judicial  proceedings,  or  by  the  powers  vested  in  the  Marshal  by 
the  Act, — the  posse  of  the  districts. 

It  was  an  absurd  provision ;  for  the  judges  could  have  no  ma- 
terials for  their  judgment,  except  what  they  derived  from  the 
Executive  department ;  and  in  point  of  fact,  before  President 
Washington  could  call  out  the  militia  to  suppress  the  Excise  In- 
surrection in  Western  Pennsylvania  in  1794,  the  Executive  de- 
partment was  obliged  to  exhibit  the  evidence  of  the  fact  to  Jus- 
tice Wilson  of  the  Supreme  Court,  to  obtain  his  fiat;  he  at  the 
same  time,  as  a  Justice  of  the  Supreme  Court,  knowing  no  more 
about  the  matter  personally  or  officially  than  any  other  reading 
man  in  the  country.  The  insurrection  had  no  relation  to  his 
office.  As  one  of  the  movements  adverse  to  Washington  in  that 
session  of  Congress,  when  persons,  whom  we  may  remember, 
were  laying  the  foundation  of  the  State  Rights  party  under  a 
different  name,  the  amendment  was  carried,  and  this  strange 
feature  given  to  the  law.  But  in  the  very  next  session  which 
followed  the  Western  Insurrection,  the  Act  of  1792  was  repealed ; 
and  by  an  Act  of  28  February,  1795,  which  is  still  in  force,  and 
was  President  Lincoln's  authority  for  his  recent  calling  forth  of 
the  militia,  insurrection  and  invasion  were  placed,  in  respect  to 
the  President's  decision,  upon  the  same  footing. 

And  the  footing  is  quite  remarkable.  The  Act  does  not  refer 
the  decision  to  the  President  nominatim.  It  does  not  grant  to 
the  President  the  power  of  deciding  the  question  of  fact.  It 
assumes  that  it  belongs  to  his  office  to  decide  each  of  these  facts ; 


44 

and  simply  enacts,  "  that  when  the  United  States  shall  be  invaded 
or  be  in  imminent  danger  of  invasion,"  and  "  that  whenever  the 
laws  of  the  United  States  shall  be  opposed,  or  the  execution 
thereof  be  obstructed  in  any  State,  by  combinations  too  powerful 
to  be  suppressed  by  the  ordinary  course  of  judicial  proceedings, 
or  by  the  powers  vested  in  the  marshal  by  this  Act,  it  shall  be 
lawful  for  the  President  of  the  United  States  to  call  forth  the 
militia  of  such  State,  or  of  any  other  State  or  States,  as  may  be 
necessary  to  suppress  such  combinations,  and  to  cause  the  laws 
to  be  duly  executed."  The  President,  from  the  very  nature  of 
the  facts,  and  the  duty  of  his  office,  decides  them  himself;  and 
in  the  case  of  Van  Martin  \.  Mutt,  12  Wheaton,  the  Supreme 
Court  decided  that  the  President's  judgment  upon  the  facts  was 
conclusive  upon  everybody.  He  decides  the  fact  of  rebellion. 
He  declares  the  number  of  militia  necessary  to  cope  with  the 
insurrection. 

And  what  other  department  can  officially  declare  these  facts  ? 
Which  department  is  to  take  care,  directly  and  universally,  that 
the  laws  be  faithfully  executed,  and  officially  to  know  that  the 
execution  is  obstructed  by  combinations  too  powerful  to  be  sup- 
pressed in  the  ordinary  course  of  judicial  proceedings,  or  can 
anticipate  the  necessity  for  armies  to  suppress  rebellion,  and  the 
number  required  to  that  end,  or  is  bound  to  devote  his  functions 
constantly  to  the  defence  and  protection  of  the  Constitution  ? 
Which  department  has  the  whole  Executive  power  of  the  United 
States,  and  with  it  the  primary  duty  of  deciding  the  facts  which 
regard  the  execution  of  the  laws  and  Constitution  of  the  country? 

It  is  manifest  then  that  there  is  no  necessity  for  a  law  of 
Congress  to  determine  the  great  fact  of  rebellion  or  invasion, 
or  the  general  or  particular  danger  to  the  public  arising  from  it, 
upon  which  the  suspension  of  the  privilege  of  the  Writ  depends. 
From  the  dawn  of  the  Government,  Congress  has  left  these  facts 
with  the  President,  and  with  him  alone. 

The  President's  means  of  acting  upon  his  decision,  the  Army, 
Navy  and  Militia,  and  their  numbers,  duration  and  support, 
must  depend  upon  Congress.  This  is  their  department.  But, 
if  Congress  were  to  take  from  him  the  power  of  deciding  upon 
the  extent  and  necessity  of  these  means,  it  would  invade  the 
Executive  Department,  which  is  to  sustain  the  execution  of  the 


45 

laws.  And  if  they  were  to  deny  him  the  means,  the  responsi- 
bility would  be  with  Congress. 

The  President  does  not  decide  the  facts  conclusively  upon 
Congress,  so  as  to  command  the  means,  or  so  that  Congress 
must  follow  him  by  providing  the  means ;  but  he  decides  them 
officially ;  and  that  is  all  that  is  necessary  to  give  effect  to  a 
warrant  of  arrest  by  him,  and  a  temporary  denial  of  the  privi- 
lege of  the  Writ  of  Habeas  Corpus. 

There  is  no  necessity  for  supposing,  in  regard  to  the  safety  of 
the  Country,  generally  and  at  large,  the  great  measures  which 
are  to  express  the  wisdom  of  the  Legislature  in  providing  for  the 
stability  and  security  of  the  Country,  and  for  the  extension  of 
its  power,  to  make  it  safe  against  both  Invasion  and  Rebellion, 
that  these  measures  are  not  to  come  from  the  Legislature. 
They  are  Legislative  measures,  and  must  come  from  the  Legisla- 
ture alone ;  though  when  they  are  consummate  as  laws,  they 
must  fall  within  the  Executive  department  in  every  particular 
in  which  that  department  has  anything  to  do  with  them,  by 
force  of  the  laws  or  the  Constitution.  But  in  the  case  of  actual 
rebellion  and  actual  invasion,  the  declaration  or  proclamation  of 
the  facts,  is  not  Legislative,  but  executive ;  and  so  is  the  decision 
of  what  the  public  safety  requires,  for  that  is  a  conclusion  of  fact 
from  other  facts,  within  the  range  of  the  same  Executive  duty. 

The  perfectly  untrammelled  judgment  of  the  President,  has 
been  resorted  to  by  Congress,  not  by  their  own  Legislative  pre- 
scription, but  under  the  Constitution,  to  estimate  the  dangers  of 
insurrection  in  all  degrees  of  force  up  to  rebellion,  and  to  esti- 
mate the  military  forces  which  safety  requires.  What  does 
safety  require,  but  that  the  offending  force  of  every  description, 
overt  and  in  ambush,  shall  be  unmasked,  assailed,  and  over- 
powered, by  a  greater  force  on  the  side  of  the  Government  and 
the  law  ?  And  these  are  facts,  and  conclusions  of  fact,  which  it 
is  specially  and  officially  the  power  and  duty  of  the  Executive 
office  to  investigate  and  make.  Congress  may  abide  by  his 
judgment  or  not  in  regard  to  the  amount  of  military  forces,  and 
may  supply  the  means  of  safety  or  not,  at  its  pleasure ;  though 
this  only  saying  that  they  may  be  untrue  to  their  trust  at  plea- 
sure. These  are  their  powers  under  the  Constitution,  and  they 
have  many  others.  But  it  is  impossible  fairly  to  deny,  that  the 


46 

department  which  holds  and  directs  the  Executive  power  of  the 
Government — which  is  charged  with  the  execution  of  the  laws, 
and  with  the  command  and  disposition  of  the  military  force — 
with  the  whole  Executive  power  of  the  nation,  subject  to  the 
exceptions  and  qualifications  which  are  expressed  in  the  Consti- 
tution, of  which  there  are  none  that  touch  this  question — is 
trusted  by  that  instrument  with  the  supervision  of  the  Union, 
with  the  power  to  estimate  what  is  its  danger  and  what  is  re- 
quired by  the  public  safety  in  time  of  rebellion,  and  of  deciding 
and  executing  his  decision,  to  the  extent  of  all  the  means  at  his 
lawful  command. 

These  remarks  meet  the  objection,  if  it  shall  be  raised,  that 
any  of  the  conditions  under  which  the  suspension  of  the  privilege 
of  the  Writ,  or  the  denial  of  that  privilege  for  a  season,  is  au- 
thorized by  the  Constitution,  require  legislation  or  the  exercise 
of  the  power  of  the  Legislature  except  as  to  the  means.  They 
do  not  require  it  as  to  the  subject.  Both  the  fact  of  rebellion 
and  what  the  public  safety  requires,  to  the  defeat  or  suppression 
of  rebellion,  are  of  Executive  cognizance  and  decision,  and  of 
execution  also,  to  the  whole  extent  of  the  lawful  means  of  that 
department.  It  is  a  breach  of  the  President's  duty,  not  to  de- 
clare the  fact,  when  the  laws  are  opposed,  and  the  execution  of 
the  laws  is  obstructed  by  combinations  too  powerful  to  be  sup- 
pressed by  the  usual  course  of  judicial  proceedings,  and  the 
Marshal's  posse.  It  is  his  special  function  and  obligation  under 
the  Constitution  to  decide  it,  and  to  the  extent  of  his  means,  to 
provide  for  the  safety  of  the  public,  which  he  cannot  do  without 
saying  what  it  requires. 

From  this  plain  and  natural  view  of  the  Executive  depart- 
ment, there  is  a  most  obvious  and  just  deduction  in  regard  to  his 
power  to  suspend  or  deny  for  a  season,  the  privilege  of  the  Writ 
of  Habeas  Corpus  in  time  of  rebellion.  The  course  of  justice  is 
at  such  a  time  obstructed.  Courts  of  justice  execute  their  office 
imperfectly.  In  some  instances  they  are  closed,  and  their  officers 
are  put  to  flight.  In  some,  their  judges  and  officers  are  parties 
to  the  rebellion,  and  take  arms  against  their  government.  In 
other  instances,  the  people,  the  jurors,  the  officers  of  courts,  are 
divided  in  their  opinions,  attachments,  families,  affinities.  Calm- 
ness, impartiality,  and  composure  of  mind,  as  well  as  unity  of 


47 

purpose,  have  departed.  It  is  not  a  season  for  the  judicial  trial 
of  all  persons  who  are  implicated  in  the  rebellion.  It  cannot  be 
while  the  rebellion  lasts.  To  arrest  and  try  even  those  who  are 
openly  guilty,  and  are  taken  with  the  red  hand,  would,  in  many 
places,  be  fruitless,  and  only  aggravate  the  evil.  The  methods 
and  devices  of  rebellion  are  infinite.  They  are  open  or  covert, 
according  to  necessity  or  advantage.  In  arms,  or  as  spies,  emis- 
saries, correspondents,  commissaries,  proveditors  of  secret  sup- 
plies and  aids,  their  name  is  sometimes  legion  ;  all  treasonable, 
and  many  of  them  disguised  or  lying  hid.  A  part  of  this  dis- 
guise may  sometimes  be  detected,  and  not  often  the  whole.  An 
intercepted  letter,  an  overheard  conversation,  a  known  proclivity, 
an  unusual  activity  in  unusual  transactions,  in  munitions,  or 
provisions,  or  clothing, — a  suspicious  fragment  and  no  more, 
without  the  present  clue  to  detection,  may  appear — not  enough 
for  the  scales  of  justice,  but  abundantly  sufficient  for  the  precau- 
tions of  the  guardian  upon  his  watch.  Such  are  the  universal 
accompaniments  of  rebellion,  and  constitute  a  danger  frequently 
worse  than  open  arms.  To  confront  it  at  once,  in  the  ordinary 
course  of  justice,  is  to  insure  its  escape,  and  to  add  to  the 
danger.  Yet  the  traitor  in  disguise  may  achieve  his  work  of 
treason  if  he  is  permitted  to  go  on ;  and  if  he  is  just  passing  from 
treason  in  purpose  to  treason  in  act,  his  arrest  and  imprisonment 
for  a  season  may  save  both  him  and  the  country. 

The  obvious  and  just  deductions  from  these  observations  is,  that 
the  power  of  suspending  or  denying  for  a  season,  the  privilege  of 
the  Writ  of  Habeas  Corpus  in  time  of  rebellion,  is  a  most  rea- 
sonable attribution  to  the  Executive  power,  such  as  the  Consti- 
tution of  the  United  States  has  made  it ;  and  so  indispensable  to 
that  branch  of  the  Government,  that  without  it,  the  very  arms 
of  the  Government  might  be  baifled  and  its  worst  enemies 
escape. 

The  Legislature  cannot  execute  the  power  itself.  If  the 
power  is  limited  to  them,  they  must  delegate  it  to  somebody. 
All  that  is  claimed  for  Congress  to  do,  is  upon  some  judgment 
of  the  facts  which  constitute  the  danger  to  the  public,  to  commit 
the  discretion  to  the  Executive.  But  why  form  a  judgment, 
and  then  leave  the  whole  judgment  to  the  Executive  as  they 
must  ?  Why  claim  for  Congress  the  power  to  suspend,  when 


the  actual  and  efficient  power  as  an  Executive  act,  must  be  with 
the  President  ?  It  is  claiming  a  power  for  Congress  invidiose, 
which  the  Constitution  did  not  feel,  or  it  would  have  spoken. 
The  Parliament  of  England  delegates  it  to  the  Crown,  because 
Parliament  alone  can  surmount  the  Constitution,  or  restrict  the 
operation  of  the  Habeas  Corpus  Act,  or  declare  an  exception  to 
it.  Parliament  must  act ;  why  must  Congress  act  ?  But  con- 
necting the  exception  inseparably  with  rebellion,  as  the  Consti- 
tution of  the  United  States  does,  and  leaving  the  exercise  of  the 
poAver  to  that  body  which  can  best  execute  it,  and  is  the  para- 
mount director  of  the  public  force  in  time  of  rebellion,  it  is  a 
reasonable  conclusion  from  the  whole,  that  the  Executive  de- 
partment is  the  body  to  which  the  Constitution  leaves  it,  and 
not  the  Legislature.  The  power  to  authorize  suspension  is  le- 
gislative. If  Congress  has  the  power  to  authorize  it,  they  may 
possibly  authorize  the  President  to  execute  their  law.  They  may 
authorize  him  perhaps,  if  the  Constitution  does  not  authorize 
him.  And  if  Congress  shall  authorize  the  President  to  execute 
their  law  by  his  warrant  against  the  persons  he  shall  think 
within  its  purview,  then,  be  it  remarked,  Congress  by  their 
law  will  leave  to  the  President,  the  very  power  of  deciding 
whether  the  public  safety  requires  that  the  privilege  of  those 
persons  shall  be  suspended.  Congress  cannot  do  otherwise  if 
they  pursue  the  course  of  Parliament,  or  the  only  example  in 
their  own  body,  of  a  bill  to  suspend  the  privilege.  No  Act  of 
Parliament  has  ever  passed  to  deprive  arrested  persons  of  bail 
or  trial,  which  did  not  leave  to  the  King  the  power,  by  his  Privy 
Council  or  Secretary  of  State,  to  decide  whether  the  public 
safety  required  the  arrest  to  be  made.  Unless  Congress  shall, 
by  the  act  itself,  designate  by  name  the  persons  to  be  arrested, 
A.  B.,  C.  D.,  E.  F.,  and  make  that  body  itself  the  executive 
officer,  the  question  of  what  the  public  safety  requires,  in  regard 
to  the  suspension  of  this  personal  privilege,  must  be  decided  by 
the  President,  and  can  be  decided  by  no  other  person. 

Perhaps  if  Congress  has  the  exclusive  power  to  authorize  the 
suspension,  it  may  assign  this  duty  to  the  President;  but  this, 
perhaps,  if  we  may  advert  to  an  objection  which  we  find  in  the 
Federalist,  is  constitutionally  the  subject  of  as  much  question  as 
anything  in  the  case. 


Between  the  report  of  the  Constitution  to  the  old  Congress, 
and  the  adoption  of  it  by  the  required  number  of  States,  among 
other  objections  to  it  of  State  Rights  origin,  was  one  that  the 
power  of  pardon  had  been  given  to  the  President  instead  of 
Congress,  and  the  reply  to  this  was  by  Hamilton. 

"  But  the  principal  argument  for  reposing  the  power  of  par- 
doning in  this  case  in  the  Chief  Magistrate  is  this :  In  seasons 
of  insurrection  or  rebellion,  there  are  often  critical  moments, 
when  a  well-timed  offer  of  pardon  to  the  insurgents  or  rebels, 
may  restore  the  tranquillity  of  the  Commonwealth,  and  which,  if 
suffered  to  pass  unimproved,  it  may  never  be  possible  afterwards 
to  recall.  The  dilatory  process  of  convening  the  Legislature  or 
one  of  its  branches,  for  the  purpose  of  obtaining  its  sanction, 
would  frequently  be  the  occasion  of  letting  slip  the  golden 
opportunity.  The  loss  of  a  week,  a  day,  or  an  hour,  may  some- 
times be  fatal.  If  it  should  be  observed,  that  a  discretionary 
power,  with  a  view  to  such  contingencies,  may  be  occasionally 
conferred  upon  the  President,  it  may  be  answered  in  the  first 
place  that  it  is  questionable  whether,  in  a  limited  Constitution, 
that  power  could  be  delegated  by  law."  Federalist,  No.  74. 
Perhaps  it  might  have  been  added — especially  to  the  President, 
the  limitations  of  whose  office  were  as  much  the  effect  of  de- 
liberation by  the  Convention,  as  the  limitations  of  Congress. 

The  whole  of  the  paragraph  from  the  Federalist,  is  as  appli- 
cable to  the  power  of  arrest  and  detention  in  time  of  rebellion, 
as  it  is  to  the  power  of  pardon. 

There  are  some  other  objections  to  this  conclusion,  which  will 
be  briefly  noticed.  None  of  them  are  of  the  least  weight,  ex- 
cept so  far  as  they  may  serve  to  make  it  improbable  that  a  power 
of  this  nature  would  be  placed  by  the  Constitution  in  the  hands 
of  the  President.  If  the  Constitution  has  placed  it  there,  that 
is  to  say,  if  it  falls  to  that  place  by  the  nature  of  the  Govern- 
ment, and  by  the  language  of  the  clause,  they  avail  nothing. 
Forget  the  analogies  of  the  English  Constitution,  and  reason 
from  our  own,  and  it  will  be  seen  that  it  falls  to  that  hand,  and 
to  no  other  in  time  of  rebellion  or  invasion,  when  alone  the 
power  can  be  exercised. 

How  natural  and  easy — indeed  how  inevitable  it  was — that 

4 


the  original  form  of  the  proposition,  which  included  the  Legisla- 
ture only,  should  be  preserved,  if  the  power  was  intended  finally 
for  Congress,  and  not  for  the  Executive  department. 

In  opposition  to  an  intention  to  leave  the  power  to  Congress, 
observe  the  striking  departure  from  parallel,  of  the  second  clause 
of  section  nine,  article  one,  from  the  first  clause  of  the  same 
section. 

First  clause  :  "  The  migration  or  importation  of  such  persons, 
&c.,  shall  not  be  prohibited  by  Congress  before  the  year  1808, 
but  a  tax  or  duty"  (expressly  within  the  power  of  Congress,  sec- 
tion 8)  "may  be  imposed  on  such  importation." 

Second  clause  :  "  The  privilege  of  the  Writ,  &c.,  shall  not 
be  suspended,  unless  when,  &c.,  the  public  safety  may  require 
it." 

The  word  Legislature  in  Mr.  Pinckney's  proposition,  aban- 
doned in  the  second  clause,  after  the  express  insertion  of  Con- 
gress in  the  first. 

If  there  is  anything  in  present  position,  this  change  of  lan- 
guage is  more  than  a  counterpoise. 

The  Constitution  has  for  obvious  reasons  enumerated  and  spe- 
cified the  powers  of  Congress.  If  Congress  was  to  have  the 
power  of  suspending  the  Writ,  why  not  specify  it  with  the  other 
powers  in  the  eighth  section  ? 

If  it  is  asked,  why  not  have  done  the  same,  if  it  was  intended 
for  the  President,  the  answer  is  this :  The  Executive  power  is 
vested  in  the  President  by  general  terms,  by  one  concise  and 
comprehensive  sentence;  those  powers  of  the  office  are  alone 
specified  or  enumerated,  which  the  President  exercises  in  connec- 
tion with  the  exercise  of  powers  by  other  departments  and  offi- 
cers, or  in  control  of  them,  as  in  the  case  of  making  treaties, 
commanding  the  army,  navy,  and  militia,  appointing  to  office, 
requiring  written  opinions  from  his  secretaries,  granting  reprieves 
and  pardons,  adjourning  Congress  in  case  of  disagreement,  and 
the  like. 

The  question  comes  back — Does  suspended  in  the  Habeas  Cor- 
pus clause  mean  suspended  by  law,  or  simply  suspended,  denied, 
deferred,  delayed,  hung  up  for  a  season  ?  Is  it  to  be  carried 
into  effect  by  a  law  of  Congress,  or  by  an  act  of  another  de- 
partment, to  which,  as  an  executive  authority,  it  appertains  ? 


The  position  taken  sometimes  in  regard  to  other  provisions  of 
the  Constitution,  that  what  a  Constitution  of  government  ordains 
generally,  it  means  to  be  carried  into  effect  by  law,  fails  in  a 
great  variety  of  cases. 

It  fails  of  course,  when,  what  the  Constitution  ordains  on  a 
subject,  is  all  the  law  it  requires  ;  as  where  a  power  to  perform 
an  executive  act  is  given,  and  the  Constitution  by  its  own  terms 
declares  the  effect  of  the  act ;  which  is  the  case  with  suspension 
of  the  privilege  of  the  Writ  of  Habeas  Corpus.  The  word 
"suspended"  gives  effect  to  the  act  when  it  is  executed  under 
the  authority  of  the  Constitution,  and  by  the  competent  autho- 
rity under  it.  It  is  the  only  word  that  could  be  used  to  give 
character  to  an  Act  of  Congress  to  this  effect. 

It  is  an  illogical  proposition  to  assert  that  whatever  a  Consti- 
tution ordains,  is  to  be  carried  into  effect  by  a  law.  Such  a  pro- 
position is  founded  on  an  absurd  postulate,  namely,  that  every- 
thing ordained  by  a  Constitution  can  be  carried  into  effect  only 
by  a  law.  It  must  be  untrue  to  a  considerable  extent  of 
every  written  Constitution.  There  are  numerous  provisions  in 
the  Constitution  of  the  United  States,  which  execute  themselves, 
or  are  to  be  executed  by  acts  in  pais,  without  the  aid  of  a  law 
of  Congress, — the  choice  of  senators  and  representatives — the 
choice  of  officers  of  each  house — the  trial  of  impeachment  by 
the  Senate — the  appointment  of  officers  by  the  President  with 
consent  of  the  Senate — the  mode  of  passing  bills  to  become  laws 
— extradition  betwen  the  States,  and  the  like.  In  the  election 
of  a  President,  the  course  is  striking  :  the  Constitution  ordains 
most  of  the  ceremony  itself,  and  it  ordains  expressly  what  Con- 
gress may  do  and  what  the  States  shall  do. 

There  is  no  such  principle ;  and  the  last  clause  of  the  eighth 
section  of  the  first  article  is  a  proof  of  it.  Congress  can  pass 
only  such  laws  as  are  necessary  and  proper  to  execute  the  powers 
given  to  themselves,  or  such  other  powers  as  are  vested  by  the 
Constitution  in  the  government,  or  in  some  department  or  officer. 
The  law  must  be  necessary  as  well  as  proper ;  and  it  is  neither 
when  the  Constitution  is  the  law. 

In  this  matter  of  suspension  of  the  privilege  of  the  Writ  of 
Habeas  Corpus,  the  Constitution  of  the  United  States  stands  in 


the  place  of  the  English  Act  of  Parliament.  It  ordains  the  sus- 
pension in  the  conditioned  cases,  by  the  act  of  the  competent  depart- 
ment— as  Parliament  does  from  time  to  time.  Neither  is  manda- 
tory in  suspending,  but  only  authoritative.  Each  leaves  discretion 
to  the  executive  power.  The  difference  is,  that  Parliament  limits 
a  time  and  provides  for  the  effect  by  technical  terms.  The  Con- 
stitution connects  the  suspension  with  the  time  of  rebellion,  and 
provides  for  the  effect,  as  it  did  for  the  privilege,  by  words  that 
comprehend  the  right,  and  deny  for  a  season  the  enjoyment 
of  it. 

It  is  further  objected  that  this  is  a  most  dangerous  power. 
It  is  fortunately  confined  to  most  dangerous  times.  In  such 
times  the  people  generally  are  willing,  and  are  often  compelled, 
to  give  up  for  a  season  a  portion  of  their  freedom  to  preserve  the 
rest ;  and  fortunately  again,  it  is  that  portion  of  the  people,  for 
the  most  part,  who  like  to  live  on  the  margin  of  disobedience  to 
the  laws,  whose  freedom  is  in  most  danger.  The  rest  are  rarely 
in  want  of  a  Habeas  Corpus. 

But  be  the  danger  what  it  may,  the  safety  with  which  such  a 
power  is  placed  with  the  President,  to  be  exercised  upon  his  own 
responsibility,  is  greater  than  if  it  were  lodged  with  Congress, 
and  greater  than  if  it  were  devolved  by  Congress  upon  the  Pre- 
sident. Congress  are  irresponsible.  Congress,  in  sympathy 
with  the  President  by  the  grant,  lessen  the  President's  responsi- 
bility. The  President,  directly  and  personally  responsible  for 
his  own  judgment  and  acts,  makes  the  guarantee  more  complete 
than  any  other  provision.  The  Executive  is  confessedly  the 
weakest  department  in  the  government,  weaker  than  is  known 
in  any  other  national  government.  Receiving  from  Congress 
all  the  dangerous  strength  the  President  can  have,  the  public 
apprehension  should  look  to  what  he  thus  receives,  and  not  to 
what  he  derives  directly  from  the  Constitution.  For  the  use  of 
powers  which  Congress  may  give  him,  to  be  exercised  according 
to  his  own  judgment,  it  is  only  in  flagitious  cases  of  wanton  op- 
pression, that  we  can  expect  Congress  to  be  his  accuser,  or  the 
Senate  his  judges.  When  his  own  judgment  brings  the  power 
into  exercise,  and  his  own  application  of  it  works  a  wrong  in  any 
degree,  he  has  nothing  to  fall  back  upon  but  his  patriotic  inten- 
tions. As  a  theorem  of  republican  polity,  a  most  dangerous 


53 

power,  if  this  be  most  dangerous,  should  be  lodged  in  the  feeblest 
hands.  In  suspending  the  privilege  of  the  Writ  of  Habeas  Cor- 
pus upon  his  own  judgment,  the  President  can  have  no  support 
but  from  his  integrity  and  his  patriotism ;  and  he  stands  directly 
before  accusers  and  judges  who  have  had  no  part  in  his  acts. 

We  have  a  striking  page  of  history  in  our  annals  to  remind  us 
of  this  distinction.  In  the  winter  of  1807,  when  there  was 
neither  invasion  of  our  country  nor  insurrection  in  its  lowest 
stage,  much  less  rebellion,  not  an  armed  force  being  proved  by 
competent  testimony  to  exist  in  any  part  of  the  country,  to  make 
Aaron  Burr's  few  followers  take  the  least  complexion  of  treason 
from  their  movements,  Mr.  Jefferson,  favoring  the  theory  that 
Congress  alone  had  the  power  of  suspending  the  privilege  of  the 
Writ  of  Habeas  Corpus,  and  that  he  might  safely  exercise  it  un- 
der their  wing,  sent  a  message  to  Congress,  representing  that  an 
emissary  of  Burr,  whom  General  Wilkinson  had  arrested  and 
imprisoned,  had  been  discharged  upon  a  Writ  of  Habeas  Corpus ; 
and  then  followed  the  phenomenon, — we  might  say  the  portent, — 
a  Senate  representing  free  States  under  the  Constitution,  passed, 
within  closed  doors,  a  bill  suspending  the  privilege  of  the  Writ 
for  three  months,  as  to  any  and  all  persons  charged  on  oath  with 
treason  or  other  high  misdemeanor,  endangering  the  peace,  safe- 
ty, or  neutrality  of  the  United  States,  and  arrested  by  the  war- 
rant of  the  President  of  the  United  States,  or  by  any  one  acting 
under  his  direction  or  authority.  There  was  not  one  word  in 
the  bill  like  rebellion  or  invasion,  the  terms  in  the  Constitution, 
nor  any  words  that  adumbrated  either.  There  was  nothing  like 
either  in  the  land.  Happily  there  was  virtue  enough  in  the 
House  of  Representatives,  or  enough  of  alienation  from  Mr.  Jef- 
ferson, to  make  the  House  reject  the  bill  by  an  immense  majority, 
and  to  open  their  doors.  But  we  may  ask  with  all  confidence, 
whether  Mr.  Jefferson,  even  with  a  consciousness  of  his  own 
power  under  the  Constitution  to  suspend  the  privilege,  would 
have  executed  such  a  purpose,  at  such  a  time,  upon  his  own  re- 
sponsibility ?  We  may  confidently  say  no.  But  if  a  majority 
of  the  House  had  acquiesced,  and  there  were  nineteen  who  voted 
for  it,  we  may  recollect  whose  sentiment  it  was,  upon  being  told 
that  his  friends  were  willing  to  ignore  a  breach  of  the  Constitu- 
tion, which  he  had  expressly  acknowledged,  replied,  that  "  if  his 


friends  were  satisfied,  he  would  acquiesce  with  satisfaction." 
This  getting  power  from  friends  in  Congress  who  are  satisfied, 
is  a  prodigious  corroborative  in  the  exercise  of  it,  whether  it  be 
Constitutional  or  not.  All  experience  teaches  us  that  the  only 
safe  depositary  of  the  power  of  suspending  the  privilege  of  the 
Writ  of  Habeas  Corpus  in  time  of  rebellion,  is  that  feeble  Exe- 
cutive, which  the  Constitution  has  made  for  us,  standing  upon 
the  only  basis  of  the  Constitution,  with  no  other  support  than 
the  integrity  and  patriotism  of  the  man  who  has  been  elected  to 
it  by  the  people. 

It  is  also  objected  that  if  the  President  holds  the  power  under 
the  Constitution,  the  exercise  of  it  has  no  limitation  of  time. 

Here  again  the  English  analogy  breaks  in.  What  the  objec- 
tion requires,  is  an  Act  suspending  the  privilege  from  session  to 
session,  renewable  as  Congress  shall  see  fit. 

The  limitation  in  England  is  practically  worth  nothing.  It  is 
either  a  show  of  supervision  without  the  reality,  to  please  the 
discontented,  and  to  disarm  party  opposition ;  or  it  is  a  manifesta- 
tion of  the  superiority  of  Parliament  to  the  Crown ;  or  it  is  the 
cantilena  of  Parliamentary  jealousy  of  the  Crown.  The  minis- 
ters who  pass  it,  can  always  renew  it  if  they  are  in  power ;  and 
if  they  are  not,  a  perpetual  Act  would  be  repealed  upon  their 
downfall.  There  was  not,  it  is  believed,  a  single  suspension 
Act  in  England,  in  the  time  of  any  of  their  rebellions,  that  was 
not  renewed  from  session  to  session,  until  the  rebellions  were 
suppressed. 

It  would  be  even  more  a  form,  and  an  unnecessary  form,  here. 
The  power  carries  a  limitation  of  time  with  it.  It  depends  for 
its  existence  upon  the  existence  of  rebellion.  The  instant  the 
rebellion  is  suppressed,  the  power  is  extinguished.  While  re- 
bellion lasts  and  the  public  safety  is  in  danger,  the  power  is 
indispensable ;  and  the  Constitution  supplies  it  for  the  whole  of 
that  occasion. 

There  is,  moreover,  the  ever  present  liability  to  impeachment, 
to  arrest  it  at  the  first  occasion  that  it  is  used  corruptly  or  ty- 
rannically for  the  purposes  of  ambition.  The  office  itself  is  a 
short  taper,  which  shines  not  very  brightly  for  a  brief  term,  and 
then  goes  out  of  itself.  The  exercise  of  the  power  would  proba- 
bly be  continued  longer  by  renewable  terms,  from  Congress  to 


55 

the  President,  than  the  President  of  his  own  judgment  would 
exercise  it  under  the  Constitution. 

A  technical  objection  to  the  exercise  of  the  power  by  the 
President,  is,  that  it  will  stay  the  issuing  of  the  Writ  of  Habeas 
Corpus  by  the  Federal  Courts  and  Judges,  or  arrest  proceedings 
under  a  writ  expressly  authorized  by  Act  of  Congress,  which 
can  only  be  stayed  or  arrested  by  a  subsequent  Act. 

This  is  English  analogy  again.  If  the  power  of  the  President 
is  derived  from  the  Constitution,  it  is  above  the  authority  of  an 
Act  of  Congress.  It  is  the  power  of  the  Constitution,  together 
with  the  authorized  act  of  denial,  that  arrests  the  proceedings 
or  stays  the  Writ  for  a  season.  But  it  is  quite  unnecessary  that 
it  should  prohibit  the  issuing  of  the  "Writ.  The  Writ  may  issue 
to  ascertain  the  cause  of  the  commitment.  The  return  of  the 
commitment  by  the  President,  if  he  possesses  the  power,  will 
stay  further  proceedings,  as  it  now  does  in  our  Federal  Courts, 
when  the  commitment  is  by  the  authority  of  a  State. 

It  is  also  said,  that  the  exercise  of  the  power  by  the  President, 
without  oath  or  descriptive  warrant,  violates  one  of  the  amend- 
ments to  the  Constitution. 

It  would  be  the  same  if  the  power  were  exercised  by  Congress. 

Non  constat,  that  the  President  will  not  require  an  oath, — 
warrant  there  always  is.  The  President  may  provide  for  the 
oath  as  well  as  Congress.  If  the  amendment  applies,  he  must 
do  it,  or  the  commitment  will  be  irregular.  But  does  the 
amendment  apply  to  this  kind  of  arrest  in  a  time  of  rebellion 
and  internal  war  ?  In  Luther  v.  Sorden,  the  Supreme  Court, 
Chief  Justice  Taney  delivering  the  opinion,  held  that  it  did  not 
apply  to  a  seizure  by  military  authority  under  a  State  law,  which 
declared  martial  law.  If  it  did  not  do  that,  it  does  not  apply  to 
a  power  of  arrest  given  by  the  Constitution,  to  be  exercised  in 
the  time  of  rebellion  and  internal  war,  and  intended  to  aid  in  its 
suppression. 

Either  the  language  of  the  amendment,  though  general,  speaks 
in  reference  to  the  normal  condition  of  the  country  only,  when 
there  is  no  rebellion  or  invasion  and  consequent  war,  foreign  or 
civil ;  or  under  such  circumstances,  rebellion  or  invasion  super- 
sedes the  amendment  for  the  time.  The  former  seems  to  be  the 
preferable  conclusion. 


56 

The  democratic  tendency  of  the  Constitution,  has  so  com- 
pletely done  its  work  in  enfeebling  the  Executive  office,  that 
very  able  men  appear  to  think,  that  to  attribute  to  the  Presi- 
dent the  power  of  suspending  the  privilege,  is  to  deprive  the 
Legislature  of  a  power  which  naturally  belongs  to  that  body. 
That  body  has  in  no  respect  a  natural  title  to  it.  Strictly 
speaking  it  belongs  naturally  to  no  department  of  the  Govern- 
ment. Discretionary  imprisonment,  however  necessary  in  times 
of  extraordinary  danger  and  internal  disorder,  is  an  arbitrary 
ouster  from  all  the  benefits  of  Government ;  benefits  which  belong 
to  every  citizen,  until  he  is  accused  and  convicted  of  crime.  If 
the  Constitution  had  not  ordained  the  exception,  no  department 
of  the  Government  could  have  enforced  it,  without  violating  the 
fundamental  principle  of  every  free  Government ;  and  it  can 
only  be  enforced  now,  by  that  department  of  Government,  which 
can  alone  execute  the  ordinances  of  the  Constitution,  that  are 
executive  in  their  character,  unless  some  other  department  be 
expressly  named. 

Yet  this  seems  to  many  the  most  irregular  exercise  of  power 
that  can  be  conceived.  The  objection  itself  is  one  of  those  evils 
which  the  Executive  department  is  exposed  to,  from  the  predomi- 
nance of  the  legislative  power  under  every  Democratic  Consti- 
tution. 

"Mattresses  de  faire  les  lois,  on  doit  craindre  quelles  ne  lui 
enlevent  peu  d  peu  la  portion  de  pouvoir  que  la  constitution  avait 
voulu  lui  conserver."  De  Tocqueville,  I,  204. 

"  Cette  dependance  du  pouvoir  executif,  est  un  des  vices  inherens 
aux  constitutions  republicaines.  Les  Americains  n'ont  pu  de- 
truire  la  pente  qui  entraine  les  assemblies  legislatives  d  sempa- 
rer  du  gouvernment,  mais  Us  out  rendu  cette  pente  moms  irre- 
sistible." Ibid. 

"Dans  tout  ce  qu'il  fait  d'essentiel,  on  le  soumet  directement 
ou  indirectement  d  la  legislature.  Oil  il  est  entierement  inde- 
pendant  d'elle,  il  ne  peut  presque  rien."  I,  215. 

The  most  intelligent  men  in  our  country,  have  come  at  length 
to  be  apprehensive  of  the  attribution  of  power  to  the  Executive, 
and  have  no  apprehension  whatever  of  seeing  it  claimed  for  that 
branch,  whose  greatly  preponderant  strength,  according  to  the 
opinion  of  eminent  men  and  lovers  of  freedom,  is  the  vice  of  the 
Constitution. 


Very  singular  results  from  this  cause  are  manifested  in  the 
present  day  by  men  of  the  first  ability  in  the  country. 

One  of  them,  abstaining  from  a  direct  assertion  of  the  Presi- 
dent's civil  authority  to  suspend  the  privilege  of  the  Writ,  claims 
a  military  power  of  equal  import  for  t^e  Commander- in-Chief  of 
the  Militia  called  into  service. 

Another  claims  to  limit  the  military  power  to  the  capture  of 
rebels  in  arms,  or  of  those  proximately  present  and  aiding,  with- 
out arms,  and  only  such,  and  handing  them  over  to  the  civil  tri- 
bunals for  trial — expressly  denying  the  President's  civil  power, 
in  rebellion,  to  detain  anybody  under  the  Habeas  Corpus  clause, 
and  reducing  his  military  power  over  captives  in  arms,  to  those 
of  a  district  marshal,  whose  duty  is  to  arrest  for  immediate  trial 
before  a  court. 

A  third  prefers  asserting  an  authority  by  martial  law,  to  cap- 
ture and  detain  at  military  discretion,  superseding  the  municipal 
laws  and  authorities,  ad  libitum,  during  the  prevalence  of  war  in 
the  country. 

A  fourth  denies  all  authority  to  the  President,  or  to  anybody 
but  Congress,  and  the  laws  they  ordain  over  the  citizens  and 
freemen  of  the  country,  even  in  a  war  of  rebellion  or  invasion, 
precisely  as  in  time  of  full  peace.  This  is  the  Parliamentary 
doctrine  before  adverted  to. 

It  is  impossible  to  imagine  stronger  evidence  of  the  influence 
of  a  democratic  Constitution  upon  the  political  opinions  of  men 
of  great  acuteness,  some  of  whom  at  least  are  probably  not  de- 
mocratic in  the  radical  signification,  as  the  Constitution  cer- 
tainly is  not,  though  its  spirit  is  largely  democratic,  fortified  for 
the  purposes  of  war,  and  for  self-defence,  with  some  pretty  strong 
organic  power.  They  withdraw  by  an  acquired  prejudice,  from 
asserting  a  civil  power  in  the  President,  the  most  clearly  execu- 
tive in  its  character, — the  most  clearly  indicated  in  the  Consti- 
tution by  the  conditions  of  its  exercise — but  the  last  to  be  thought 
of  by  them,  because  it  carries  power  in  that  direction,  which  is 
against  the  gulf  stream  of  Legislative  authority,  the  great  chan- 
nel of  the  popular  will  of  the  moment. 

No  apprehension  of  that  nature  has  prevented  the  writer  of 
this  paper  from  expressing  with  moderation,  and  deference  for 
contrary  opinions,  the  suggestions  of  his  own  mind. 

5 


58 

The  conclusion  of  the  whole  matter  is  this  :  that  the  Con- 
stitution itself  is  the  law  of  the  privilege,  and  of  the  exception 
to  it ;  that  the  exception  is  expressed  in  the  Constitution,  and 
that  the  Constitution  gives  effect  to  the  act  of  suspension  when 

the  conditions  occur  :  that  the  conditions  consist  of  two  matters 

« 

of  fact,  one  a  naked  matter  of  fact,  and  the  other  a  matter-of-fact 
conclusion  from  facts,  that  is  to  say,  rebellion  and  the  public 
danger,  or  the  requirement  of  public  safety.  Whichever  power 
of  the  constituted  government  can  most  properly  decide  these 
facts,  is  master  of  the  exception,  and  competent  to  apply  it. 
Whether  it  be  Congress  or  the  President,  the  power  can  only  be 
derived  by  implication,  as  there  is  no  express  delegation  of 
the  power  in  the  Constitution ;  and  it  must  be  derived  to  that 
department  whose  functions  are  the  most  appropriate  to  it.  Con- 
gress cannot  executively  suspend.  All  that  a  Legislative  body 
can  do,  is  to  authorize  suspension,  by  giving  that  effect  to  an  Ex- 
ecutive act;  and  the  Constitution  having  authorized  that,  there 
is  no  room  for  the  exercise  of  Legislative  power.  The  Constitu- 
tion intended,  that  for  the  defence  of  the  nation  against  rebellion 
and  invasion,  the  power  should  always  be  kept  open  in  either  of 
these  events,  to  be  used  by  that  department,  which  is  the  most 
competent  in  the  same  events  to  say  what  the  public  safety  re- 
quires in  this  behalf.  The  President  being  the  properest  and  the 
safest  depositary  of  the  power,  and  being  the  only  power  which 
can  exercise  it  under  real  and  effective  responsibilities  to  the 
people,  it  is  both  constitutional  and  safe  to  argue,  that  the  Con- 
stitution has  placed  it  with  him. 


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